Food Lion, LLC v. Toehlke
| Decision Date | 14 April 2020 |
| Docket Number | Record No. 1507-19-1 |
| Court | Virginia Court of Appeals |
| Parties | FOOD LION, LLC AND DELHAIZE AMERICA, LLC v. JOYCE TOEHLKE |
UNPUBLISHED
Present: Judges Huff, O'Brien and Senior Judge Frank
Argued by teleconference
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Steven H. Theisen (Midkiff, Muncie & Ross, P.C., on brief), for appellants.
Philip J. Geib (Philip J. Geib, P.C., on brief), for appellee.
Food Lion, LLC and Delhaize America, LLC ("employer") appeal an award for worker's compensation benefits to Joyce Toehlke ("claimant") by the Virginia Workers' Compensation Commission. Employer raises four assignments of error. First, employer contends that the Commission erred by finding claimant provided timely notice of the alleged accident. Second, employer claims the Commission's finding that claimant sustained an injury by accident was error because claimant failed to prove the accident actually occurred. Third, employer claims the Commission erred by finding claimant's injury and medical treatment were caused by the alleged accident. Finally, employer claims the Commission erred by awarding continuing total temporary disability benefits because claimant failed to establish her disability was permanent or ongoing. Because there is credible evidence in the record supporting each of the Commission's findings, this Court affirms.
"Under settled principles of appellate review, we consider the evidence in the light most favorable to [claimant] as the prevailing party before the commission." Layne v. Crist Elec. Contractor, Inc., 64 Va. App. 342, 345 (2015). So viewed, the evidence shows that claimant began working at Food Lion as a specialty merchandise associate in January 2014. On or about December 1, 2014,1 claimant was standing on a step stool around seven feet in the air while reaching overhead to retrieve a tote filled with merchandise. The tote was heavier than she anticipated, causing her to fall off the step stool. She testified: "I just remember my arms and everything jolting, and my left knee hit the concrete and my right foot was still kind of tangled up in the stepstool."
Soon after, claimant reported the accident to her supervisor, assistant store manager Sharon Halligan. Claimant did not remember if she reported it to Halligan on the same day or a couple of days later. Claimant told Halligan that she had fallen off the step stool and that her hips, lower back, neck, and knee were hurting as a result. She told Halligan she planned to go to her hip doctor since she had a pre-existing hip problem and didn't know if she was experiencing back pain or hip pain. Halligan recalled speaking to claimant about the accident around that same time. According to Halligan, she followed protocol and completed an accident report shortly after claimant told her about the accident.
Claimant sought treatment from Dr. Campbell, her hip doctor, on December 8, 2014. However, an insurance issue prevented her from being seen then. While at Dr. Campbell's office, claimant completed a patient information form where she listed that the injury had occurred "months ago." When asked whether the injury was work related, she wrote, "pre-existing/work has made it worse." She also completed a new ailment report while at Dr. Campbell's office. Shedescribed her symptoms as "left lower back pain, hip also feels weak, hurts and goes down my leg and foot, numbness and needles, cramping bad/worse when I stand or walk." She wrote that her symptoms first appeared "months ago" and that it "just keeps getting worse."
On December 15, 2014, claimant had an appointment with Dr. Goldberg, a neurologist whom she saw regularly for neck pain, migraines, and occasional low back pain. No mention is made of the December 1, 2014 accident in Dr. Goldberg's report. According to claimant, however, she told Dr. Goldberg about the accident during the visit. He later diagnosed her with "lumbosacral radiculopathy with recurrent symptomatology or primary left hip issue . . . ." Dr. Goldberg recommended that claimant find a job that did not require lifting. A couple of weeks later, claimant resigned from Food Lion. She then worked at Tidewater Fleet Supply for approximately one and a half years, earning a higher wage than she did at Food Lion.
On March 19, 2015, claimant was treated by Dr. Campbell. His office notes reflect that she complained of left hip pain that was sudden onset after an "injury which occurred around 11/2014 while climbing down a ladder carrying a heavy tote, she reports her leg gave way when she stepped off the ladder." Later, Dr. Goldberg referred claimant to Dr. Levi, a physiatrist, for pain management. On July 9, 2015, Dr. Levi's physician's assistant noted that claimant complained of eight months of "left side dominate low back pain" that was acute onset "after she was lifting a heavy tote and fell forward." The physician's assistant further noted that
Dr. Levi referred claimant to Dr. Laurent, a back surgeon. At some point, claimant called her former Food Lion supervisor, Halligan, and informed Halligan about her scheduled surgery, mentioning that she believed the injuries were related to the December 1, 2014 accident at FoodLion. Dr. Laurent performed surgery on claimant's back on January 19, 2016, from which claimant suffered vascular complications. On April 16, 2016, Dr. Laurent completed a questionnaire where he stated that claimant's lumbar radiculopathy and subsequent surgery was proximately related to her work accident. In his August 30, 2016 letter, Dr. Laurent continued to causally relate claimant's injury and disability to the work accident. He considered the inconsistencies in the records and stated that the signs of a back injury will often manifest themselves initially as a hip injury, explaining why claimant originally thought her pain could be from her pre-existing hip injury. He also stated that "if the conditions of Ms. Toehlke's spine had been present prior to December 1, 2014, this patient would have likely exhibited significant difficulties and clinical complaints of a profound nature."
Claimant continued to have difficulties after the surgery. She required a walker to ambulate and had "significant limitation" on "how long she can stand and walk." On June 1, 2016, Dr. Laurent restricted claimant from performing any duty and stated "patient will not be returning to work." A month later he noted that claimant had tried to return to work but could not "tolerate the long sitting" required, and he stated that "I do not think it would be a good idea for her to return to work as she is unable to tolerate what is required at that job and to be honest I cannot think of a position right now, which she would be suited for with her current disabilities." Moreover, in a November 30, 2016 report, Dr. Laurent opined that claimant "is likely to have a level of permanent disability." She continued to see Dr. Laurent and began treating with Dr. Gershon to manage her pain. In June of 2017, claimant had "been stable over the past 6 months," but was still using a walker for ambulation." A year later, in June of 2018, Dr. Gershon noted that claimant continued on "No Duty" "Per Dr. Laurent."
Claimant filed multiple Virginia Workers' Compensation claims, beginning on January 7, 2016.2 She alleged injuries to her lower back, left hip, and cervical spine/neck because of the December 1, 2014 accident. The insurance adjuster for employer first became aware of the accident on December 11, 2015.
At the hearings, claimant withdrew her claims related to her left hip and cervical spine/neck. In an opinion issued on September 17, 2018, Deputy Commissioner Wilder denied the remaining claims, finding she had not proved she sustained a compensable injury by accident or that she provided timely notice of her injury. The deputy commissioner based this finding on the lack of documentation mentioning the incident in any of claimant's medical records prior to March 9, 2015, and the lack of evidence that employer was made aware of the incident within a reasonable time.
Claimant requested review of the decision, and the full Commission reversed in a January 28, 2019 opinion, remanding the case to address claimant's wage loss claim and employer's remaining defenses. The full Commission found that claimant's testimony, along with the testimony of her former supervisor Sherry Halligan, proved by a preponderance of the evidence that claimant had given employer notice of the accident within thirty days, making it timely. On remand, Deputy Commissioner Wilder found that claimant had proven she sustained injuries to her lower back and left hip in the December 1, 2014 accident and entered a medical award. The deputy commissioner also found that claimant proved entitlement to temporary total disability benefits for December 23, 2014 through January 1, 2015; January 19, 2016 through March 6, 2016; and beginning June 1, 2016.
On May 15, 2019, the employer requested review of Deputy Commissioner Wilder's decision. In its August 21, 2019 opinion, the full Commission declined to reconsider the findingsthat claimant had provided timely notice and sustained a compensable injury. However, it reversed the finding regarding an injury sustained to the left hip and the subsequent medical award, since that claim had been withdrawn previously and was not properly before the deputy commissioner. It also modified the award of disability benefits, overturning the award for December 23, 2014 through January 1, 2015, thus limiting the total disability benefits to the periods of January 19, 2016 through March 6, 2016, and from June 1, 2016, until conditions justify a modification thereof. This...
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