Enterprises v. Cooper

• Decision Date: 09 June 2015
• Docket Number: Record No. 2320-14-2
• Court: Virginia Court of Appeals
• Parties: GENE FORBES ENTERPRISES d/b/a McDONALD'S OF TAZEWELL AND ARCH INSURANCE COMPANY v. JANIS R. COOPER

GENE FORBES ENTERPRISES d/b/a McDONALD'S OF TAZEWELL AND ARCH INSURANCE COMPANY v. JANIS R. COOPER

Record No. 2320-14-2

COURT OF APPEALS OF VIRGINIA

JUNE 9, 2015

UNPUBLISHED

Present: Chief Judge Huff, Judges Russell and AtLee

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE WESLEY G. RUSSELL, JR.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Steven T. Billy (Billy & Seli, P.C., on briefs), for appellants.

Mark T. Hurt (The Law Offices of Mark T. Hurt, on brief), for appellee.

Appellants, Gene Forbes Enterprises d/b/a McDonald's of Tazewell and Arch Insurance Company (employer), appeal the decision of the Workers' Compensation Commission awarding benefits to appellee. On appeal, employer presents the following eleven assignments of error:

1. The [commission] erred, as a matter of law, in affirming the [d]eputy [c]ommissioner's decision excluding and refusing to consider the January 19, 2014 questionnaire responses of Dr. James Vascik.

2. The [commission] erred, as a matter of law, in affirming the [d]eputy [c]ommissioner's decision to admit [claimant's] exhibits #3-5 into the evidence.

3. The [commission] erred, as a matter of law and fact, in finding that [claimant] suffered a compensable injury by accident that arose out of her employment on September 3, 2013.

4. The [commission] erred, as a matter of law and fact, in finding that [claimant] suffered a compensable injury by accident that

occurred in the course of her employment on September 3, 2013.

5. The [commission] erred, as a matter of law and fact, in finding that [claimant] suffered a sudden mechanical or structural change to her neck on September 3, 2013.

6. The [commission] erred, as a matter of law and fact, in finding that [claimant's] medical treatment and alleged disability were causally related to the alleged accident of September 3, 2014.

7. The [commission] erred, as a matter of law, in awarding [claimant] lifetime medical benefits for body parts for which no claim had been filed.

8. The [commission] erred, as a matter of law and fact, in awarding [claimant] disability benefits for periods when she did not have a legally sufficient statement of total disability and in awarding [claimant] ongoing disability.

9. The [commission] erred, as a matter of law, in failing to make a ruling on [employer's] asserted defense that [claimant] failed to market her residual work capacity.

10. The [commission] erred, as a matter of law, in failing to correct the employer's name in the proceedings from McDonald's of Tazewell d/b/a Gene Forbes Enterprises to its proper legal name, Gene Forbes Enterprises d/b/a McDonald's of Tazewell.¹

11. The [employer] challenge[s] the legal conclusions of the [commission] and the sufficiency of the evidence to support the [c]ommission's decision in this case.²

For the reasons stated below, we affirm the decision of the commission.

BACKGROUND

On appeals from the commission, "we review the evidence in the light most favorable to the prevailing party[,]" here, claimant. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Moreover, "[f]actual findings of the commission will not be disturbed on appeal unless plainly wrong or without credible evidence to support them." Ga. Pac. Corp. v. Dancy, 17 Va. App. 128, 135, 435 S.E.2d 898, 902 (1993) (citation omitted).

So viewed, the record establishes that claimant is a former employee of Gene Forbes Enterprises, a business that operated several McDonald's restaurants, including one in both Bluefield and Tazewell, Virginia. Claimant, a forty-three-year-old female, worked for the company at various store locations for 23 years. In 2008, she was serving as store manager at the Bluefield, Virginia store. In June 2013, the business decided to close the Bluefield location for renovations, and claimant was transferred to Tazewell, where she remained a manager, but was subject to the direction of that location's store manager. Claimant admits she was displeased by her reassignment. Her duties in these positions, which usually entailed nine-hour shifts, included serving customers, frequent cleaning of all parts of the store, regular loading and unloading of supply trucks, and lifting of equipment and product weighing up to 40 pounds.

On October 8, 2013, claimant filed with the Virginia Workers' Compensation Commission a claim for benefits for a neck injury she claimed to have sustained while working at the Tazewell McDonald's drive-thru window on September 3, 2013.³ According to claimant, on the date of her injury, she was manning the drive-thru by herself when, in fulfilling an order, a bag of french fries slipped from her hands. When she impulsively bent over quickly to catch the bag, claimant "heard and felt a tear" down her neck and shoulder and felt a shooting pain thatcaused her to cry. She reported the injury to her supervisor the same day and informed her that the pain would not allow her to work late. Claimant acknowledges that she had issues with neck and back problems before this incident, however she had no history of absences from work based on those issues and stated that the previous pain was different in that it was more sporadic and felt more like a tingling or numbing sensation rather than pain.

Hoping that the injury was minor and that the pain would be temporary, claimant did not immediately seek medical treatment. Not having recovered after two days, however, she sought treatment from a family nurse practitioner, Ms. Walker, on September 5, 2013. The nurse practitioner's records note that claimant was working when she "felt a pop in her posterior left neck followed by a burning like pain [in] the muscle with no radiation" and that "[s]ince [the incident claimant] has continued her activities and work to the point that both the upper back and neck pain have become worse and unbearable causing her not to be able to walk, bend, stand, breathe, lift, sleep, work or perform ADL's normally." Nurse Practitioner Walker instructed claimant to refrain from work until her follow-up appointment on September 9, 2013.

After claimant's follow-up appointment, claimant still experienced pain on the left side of her upper trapezius and also in the left scapula trapezius area.⁴ During a subsequent visit, she cried because of the pain and the inability to continue providing for her family. Based on claimant's irregular gait, bent-over posture, and continued negative results on the straight leg raise exam, Nurse Practitioner Walker referred claimant for a cervical MRI, which was conducted on September 20, 2013. Based on the MRI results, claimant was then referred to aneurosurgeon, Dr. James M. Vascik. Claimant also was referred to physical therapy, and she was advised to remain out of work.

Dr. Vascik examined claimant on October 1, 2013. Notes from that visit reveal that claimant came to the office "bent over at the waist with her head cocked over to the right." According to Dr. Vascik's analysis of the recent MRIs, claimant had bulging disks from C3-C7, but those disks were not touching her spinal cord or the nerve roots. Dr. Vascik concluded, "I do not see a surgical problem on any of her studies. I don't see that an ESI would be of value as I believe her problem is musculoskeletal in nature, not from a nerve root compression problem."

The following day, claimant returned to Nurse Practitioner Walker, where she complained of continuing and exasperated pain due to the car ride to the neurosurgeon and the physical therapy. Claimant was then referred to an orthopaedic physician and, a short time thereafter, another neurosurgeon. When claimant attempted to make an appointment with the orthopaedist, she was informed that he did not treat neck and back injuries, and she did not see the neurosurgeon, despite arriving for her appointment, because she could not afford the co-pay.

Claimant also started seeing a pain specialist, Dr. Marc Swanson, whose office claimant first visited on October 30, 2013. Claimant's continued pain, which she described as tightness in her left neck and shoulder muscles, caused her to continue visiting Dr. Swanson, despite not being able to afford much treatment. She visited Dr. Swanson on a monthly basis and received several brachial plexis block injections to alleviate her muscle spasms. This treatment afforded her temporary pain relief of three to five days. Dr. Swanson found that although claimant may have had a pre-existing injury, the September 3, 2013 incident "escalated her pain and added to the functional impairment over and above and beyond what she experienced up until the injury, to the point of injury[,]" and he linked her present condition to the event to a reasonable degree of medical certainty.

In January 2014, Dr. Swanson noted that claimant could not safely or reliably return to work and advised that she remain out of work until the end of February. Dr. Swanson commented that, while claimant was demonstrating some improvement, she would not be employable "when she struggles with neck and arm pain, radicular symptoms, symptoms that really limit her ability to function during the day." Claimant testified that she could no longer engage in hobbies such as hunting and fishing and could not perform routine tasks, such as house and yard work, grocery shopping, or extended driving without straining her injury. Dr. Swanson ultimately concluded that claimant "is not currently able to return to work."

After claimant filed her claim for benefits, a hearing was scheduled before the deputy commissioner for January 21, 2014. After granting two continuances based on claimant's motions, the matter was reset for May 13, 2014. Claimant filed her designation of medical records on May 9, 2014. Employer filed its designation of medical records on the evening of May 12, 2014, the day before the rescheduled hearing. The designation included questionnaire responses that employer previously had received from Dr. Vascik on or about January 19, 2014....