Fleming v. WORKERS'COMP. COM'N OF COM. OF VA.

• Decision Date: 06 March 1995
• Docket Number: Civ. A. No. 3:94CV710.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Charles William FLEMING, Plaintiff, v. WORKERS' COMPENSATION COMMISSION OF the COMMONWEALTH OF VIRGINIA, et al., Defendants.

878 F. Supp. 852

Charles William FLEMING, Plaintiff, v. WORKERS' COMPENSATION COMMISSION OF the COMMONWEALTH OF VIRGINIA, et al., Defendants.

Civ. A. No. 3:94CV710.

United States District Court, E.D. Virginia, Richmond Division.

March 6, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas Hunt Roberts and Ronald Paul Geiersbach, Roberts, P.C., Richmond, VA, for plaintiff.

John Montgomery McCarthy, Teresa Creef Manning, Michael King Jackson, Office of the Atty. Gen., and Richard Thomas Pledger, and Archibald Wallace, III, Sands, Anderson, Marks & Miller, Richmond, VA, for defendants.

MEMORANDUM OPINION

SPENCER, District Judge.

IN THIS action, plaintiff Charles William Fleming contends that his rights to procedural due process were infringed when his former employer's workers' compensation insurance carrier, acting pursuant to state law, suspended his benefits. This Court has previously denied the defendants' Motion to Dismiss, and granted Fleming leave to file a Second Amended Complaint. See Fleming v. Workers' Compensation Comm., No. 3:94CV710 (E.D.Va., Jan 27, 1995). In that pleading, Fleming named the Commissioners as party defendants, proceeding against them under the theory of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

This matter is currently before the Court upon the parties' cross motions for summary judgment, pursuant to Rule 59(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court will dismiss this action.

I.

On June 30, 1993, Fleming injured his back while working for his employer, Calloway's Transportation, Inc. Stip. ¶¶ 1, 3. Unable to continue his employment, Fleming sought workers' compensation and, in proceedings at the Virginia Workers' Compensation Commission ("the Commission"), he was awarded $232.42 weekly as well as medical benefits. Stip. ¶¶ 3, 5. United States Fidelity and Guaranty Company ("USF & G"), Calloway's workers' compensation carrier, began making payments to Fleming on July 28, 1993. Stip. ¶ 6.

Fleming's physician, Dr. E. Claiborne Irby, diagnosed Fleming's injury as lumbar strain with disc herniation. Stip. ¶ 8. In August of 1993, Dr. Irby suggested that Fleming's injury might require surgery. Id. At USF & G's request, Dr. Ralph E. Hagen rendered a second opinion. After examining Fleming, Dr. Hagen indicated that he could not recommend surgery until he had followed Fleming's condition over a greater period of time. Id.

On January 7, 1994, Dr. Irby referred Fleming for a Work Conditioning Evaluation at Henrico Doctors Hospital's Sports and Occupational Rehabilitation Center. Stip. ¶ 9. This test was designed to establish a baseline performance by which Fleming's progress could be measured; the ultimate goal was to determine whether Fleming would benefit from a work hardening program. Id. The report indicated that Fleming's injury was difficult to assess, primarily because there were no positive physical findings to corroborate his complaints of symptoms. Id. On January 24, 1994, Dr. Irby referred Fleming to Dr. J. Michael Simpson for examination. Stip. ¶ 10. Among his findings, Dr. Simpson noted the presence of degenerative lumbar disc disease. Id. While he felt that surgery was "not an unreasonable option, ... the chances of surgical success are in the range of 50%." Id. Nevertheless, Dr. Simpson felt that surgery was "probably worthwhile for Fleming in attempts to get him back to work." Id. Whether he rejected this recommendation or simply failed to come to a decision is unclear, but Fleming did not have the operation.

On March 10, 1994, Dr. Irby once again recommended surgery, basing his suggestion on Dr. Simpson's evaluation and on a recent MRI scan confirming the presence of degenerative disc disease in Fleming's back. Stip. ¶ 11. When Fleming would not agree to surgery, Dr. Irby referred him back to the Sports and Occupational Rehabilitation Center. Id. On March 21, 1994, the Center performed a Functional Capacity Evaluation on Fleming, which revealed that he could perform

light level work, on a part-time basis of 3 hours daily. He would have limitations of sitting at 40 minutes at a time, standing for 15 minute periods, lifting 20 pounds occasionally from thigh to overhead, and driving an automatic vehicle for 15 minute periods.

Id. In addition, the Evaluation indicated that "there is strong evidence that additional surgical intervention may be necessary to retard the progression of Fleming's disabilities." Id.

Doctor Irby again conferred with Fleming, on April 26, 1994, and renewed his recommendation for surgery. Stip. ¶ 12. Fleming continued to vacillate, unable to decide whether to undergo the procedure or not. Id. After his next examination of Fleming, on May 4, 1994, Dr. Irby noted that given Fleming's indecision, he was crafting an alternative, conservative proposal, consisting of work hardening and functional capacity evaluations. Stip. ¶ 13. Consistent with this decision, he scheduled Fleming for a May 5, 1994, work hardening evaluation at Richmond Rehabilitation. Id. Fleming did not show up for the appointment. Stip. ¶ 14. On May 25, 1994, Fleming visited Dr. Irby again and explained that he missed the test for fear of the pain involved. Stip. ¶ 18.

On May 11, 1994, USF & G filed an "Employer's Application for Hearing" to terminate Fleming's award, citing his failure to attend the work hardening evaluation. Stip. ¶ 15. Pursuant to Commission Rules 1.4(C)(2)¹ and 1.5(C)(1)², USF & G also suspended payments on the award. Stip. ¶¶ 15, 17. Fleming filed a formal response denying the charge, and on June 1, 1994, USF & G's Application was referred to the Commission's evidentiary docket for a hearing before a Deputy Commissioner. Stip. ¶¶ 15, 17a, 19. Although docketed, however, the Application was not set for a hearing. Stip. ¶ 17a.

On June 6, 1994, Dr. Irby notified USF & G that he had rejected the proposed work hardening regimen, and had instead recommended that Fleming seek work within the guidelines set by Sports and Occupational Rehabilitation Center in March. Stip. ¶¶ 20-21. Because Fleming's failure to pursue the work hardening had prompted the action, USF & G withdrew its Application on June 17, 1994. Stip. ¶ 22. And, with the withdrawal of the Application, USF & G reinstated Fleming's compensation after a lapse of some 38 days. Stip. ¶ 22.³ The Commission dismissed USF & G's Application without prejudice on June 21, 1994, and removed the case from its docket. Stip. ¶ 23. The matter had never been set for a hearing. Stip. ¶ 17a.

Fleming thereafter commenced a search for employment meeting the guidelines of the March evaluation. Stip. ¶ 24.⁴ On October 10, 1994, he interviewed with Colonial Security Services about a position as a security officer. Stip. ¶ 24, 26. Offered a position from 4 p.m. to 12:00 p.m. on Saturday and Sunday, and 10 p.m. to 6 a.m. Tuesday and Wednesday, Fleming stated that he wanted the job; however, he felt obliged to consult with Dr. Irby regarding the prudence of working eight hour shifts. Stip. ¶ 25. In addition, he told Colonial that he had no transportation. Id. Colonial's records of October 14, 1994, indicate that Fleming had declined the job offer due to a lack of transportation. Stip. ¶ 26. The Company noted that a position was still open for Fleming if transportation became available. Id.

On November 7, 1994, USF & G filed another "Employer's Application for Hearing" requesting the termination of Fleming's award for his alleged refusal to accept selective employment within his physical capacity. Stip. ¶ 27. With this Application, USF & G again suspended compensation payments. Id. On November 16, 1994, Fleming attempted to enforce his award by requesting that the Commission certify it to state circuit court; he based his request upon USF & G's alleged failure to comply with the award. Stip. ¶ 28.⁵ The Commission refused Fleming's request, stating that it would not certify an award that had been validly suspended by the filing of an Employer's Application. Stip. ¶ 29. The Commission then referred the Application to its Dispute Resolution Department. Stip. ¶ 17a.⁶

Fleming responded to USF & G's Application on November 22, 1994. He denied any wrongdoing, explaining that he believed that the Colonial opening required use of personal vehicle. Stip. ¶ 30.⁷ The next day, November 23, 1994, USF & G learned that Colonial had withdrawn its earlier offer of employment, but had issued Fleming another offer, set to expire on November 30. Stip. ¶ 32-33. Consequently, USF & G requested that the Commission allow it to reply to Fleming's response after that date. Stip. ¶ 33.

On November 30, 1994, the Commission declared that USF & G lacked probable cause to justify suspending Fleming's benefits. Stip. ¶ 34. It therefore rejected the Application and reinstated all benefits. Id.⁸ Fleming had been without benefits for some 23 days.

II.

Under Rule 56(c), a motion for summary judgment may be granted "only if the pleadings, depositions, interrogatory answers, admissions, and affidavits show `that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Magill v. Gulf & W. Indus., Inc., 736 F.2d 976, 979 (4th Cir.1984) (quoting Fed.R.Civ.P. 56(c)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); EEOC v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir.1992). "Where ... the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." United States v. Lee, 943 F.2d 366, 368 (4th Cir.1991) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

III.

In this lawsuit, Fleming claims that he was deprived of his right to procedural due process because his benefits were suspended without notice and a pre-deprivation opportunity...