Georgia Pacific Corp. v. Dancy

• Decision Date: 28 September 1993
• Docket Number: No. 2176-92-2,2176-92-2
• Citation: 17 Va.App. 128,435 S.E.2d 898
• Parties: GEORGIA PACIFIC CORPORATION v. Claude Franklin DANCY. Record
• Court: Virginia Court of Appeals

Page 898

435 S.E.2d 898

17 Va.App. 128

GEORGIA PACIFIC CORPORATION v. Claude Franklin DANCY.

Record No. 2176-92-2.

Court of Appeals of Virginia.

Sept. 28, 1993.

Cecil H. Creasey, Jr., Richmond (Sands, Anderson, Marks & Miller, on briefs), for appellant.

Brian J. Cusce, Chesterfield (David B. Rheingold, Walter Emroch & Associates, Richmond, on brief), for appellee.

Present: COLEMAN, WILLIS and ELDER, JJ.

COLEMAN, Judge.

Georgia Pacific Corporation appeals a workers' compensation award that granted Claude Franklin Dancy temporary total disability benefits for an occupational injury that he sustained in May, 1985. Georgia Pacific contends that the commission denied it due process by affirming the deputy commissioner's award on a theory not alleged by the claimant and not addressed by the deputy commissioner. Georgia Pacific also contends that the commission erred in finding that Dancy is totally, rather than partially, disabled and, therefore, incorrectly relieved him of his burden to prove that he had made a reasonable effort to market his residual work capacity.

Dancy cross-appeals the commission's finding that Dr. Hallett Mathews was not an authorized physician and, therefore, Georgia Pacific was not required to reimburse Dancy for the costs of Dr. Mathews' medical services. For the reasons that follow, we affirm the commission's decision.

On May 20, 1985, Dancy sustained a compensable injury to both legs, for which he received temporary total disability benefits through July 8, 1987. On July 9, 1987, Dr. John Cardea, Dancy's treating physician, rated a fifteen percent permanent loss of use in Dancy's right leg and a fifty percent permanent loss of use in his left leg. Dr. Cardea reported that Dancy could perform light work requiring no climbing, stooping or bending, but that Dancy would require further surgery and rehabilitation training. Based on Dr. Cardea's report, Georgia Pacific executed a supplemental memorandum agreement awarding Dancy permanent partial disability benefits under Code § 65.1-56 (now Code § 65.2-503) for the loss of use of his right leg. The payments for Dancy's permanent partial disability began on July 9, 1987, and ended in January, 1988.

On December 7, 1987, Dr. Cardea re-examined Dancy and rated the permanent loss of use to his left leg at one hundred percent. In his report, Dr. Cardea stated, "I do not think that [Dancy] is ever going to return to work under these circumstances ... unless they put him in a work hardening program." Dr. Cardea recommended that Dancy be released to a sedentary job and that he receive "advanced exercises." Georgia Pacific requested an independent medical evaluation by Dr. Hallett Mathews, who examined Dancy on June 29, 1988. Dr. Mathews, in a report dated July 6, 1988, concurred in Dr. Cardea's conclusions. Accordingly, Georgia Pacific executed a second memorandum of agreement awarding Dancy permanent disability payments under Code § 65.1-56 (now Code § 65.2-503) for total loss of use of the left leg. Those additional payments began on January 9, 1988, and continued until May, 1991.

After the permanent benefits had been paid, Dancy filed an application on June 4, 1991, requesting resumption of temporary total disability benefits, which the deputy commissioner considered as an application based on a change of condition under Code § 65.1-99 (now Code § 65.2-708). The "change of condition" alleged by Dancy was that his scheduled permanent disability benefits had ceased but his disability to work continued.

At the December 18, 1991, deputy commissioner's hearing, the parties presented evidence as to whether Dancy continued to be totally disabled. The employer defended on the ground that Dancy was not totally disabled. Whether Dancy's disability was partial, requiring him to market any residual work capacity, was the primary issue addressed. Dr. Cardea reported that, based on his November 5, 1991, examination of Dancy, Dancy's injuries "may preclude him from doing overt, heavy labor but may not preclude non-laboring type of job," but that he "would not recommend a release to ... work ... until [Dancy] had been through a complete work hardening program." At another point, Dr. Cardea stated, "I do not feel [Dancy] is able to return to any type of laboring duty at this time without a work hardening program." In a letter to the employer, Dr. Cardea explained that the release would be to do sedentary work, not light work. Dr. Mathews, who had examined and treated Dancy, reported in an October 28, 1991, letter that, as a result of the 1985 injury to Dancy, he continued to have a one hundred percent disability in his left leg and fifteen percent disability in his right leg. Dr. Mathews concluded that Dancy was not suitable for any type of gainful employment because of chronic pain, stating, "[e]ven in a wheelchair, [Dancy] would be an absolutely miserable employee."

Dancy had not worked while he was receiving compensation for his permanent loss. He had attempted light duty work for three days in 1987, which he was unable to perform due to pain and swelling in his legs. He has made no effort to obtain work since 1988, contending that he has been totally disabled and remains so until such time as rehabilitation might enable him to do sedentary work.

The deputy commissioner found that Dr. Cardea had released Dancy to do sedentary work on the condition that he undergo a work hardening program. Because no evidence was presented that Georgia Pacific had offered or provided Dancy a work hardening program or rehabilitative services, the deputy commissioner found that Dancy had established a change of condition under Code § 65.1-99 (now Code § 65.2-708) by proving that he continued to be totally disabled. The deputy awarded Dancy temporary total disability benefits.

Upon review, the commission affirmed, finding from the evidence that Dancy remained totally disabled. The commission noted, however, in clarifying the basis for the deputy commissioner's holding, that, based on the decision in Armstrong Furniture v. Elder, 4 Va.App. 238, 244, 356 S.E.2d 614, 617 (1987), the cessation of scheduled permanent disability benefits, standing alone, does not constitute a change in condition under Code § 65.1-99 (now Code § 65.2-708(A)). The commission went on to hold that the claimant had established a right to a resumption of temporary total disability benefits under Code § 65.1-56 (now Code § 65.2-503) by proving that without his having the benefit of rehabilitative services in order to be able to return to work, his partial incapacity was totally disabling. The commission awarded Dancy temporary total disability benefits based on a finding that Dancy's partial disability caused him to be totally disabled under Code § 65.1-56 (now Code § 65.2-503).

The commission also found that Dancy's treating physician was Dr. Cardea, that Dr. Mathews was not an authorized physician, and that Georgia Pacific was not required to pay for Dr. Mathews' medical services, except for the June 29, 1988, examination of Dancy that Georgia Pacific had requested.

I. DUE PROCESS

The commission did not deny Georgia Pacific due process by affirming Dancy's award of disability benefits based upon a theory different from that adopted by the deputy commissioner. Due process requires notice that is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 416-17, 270 S.E.2d 723, 726 (1980) (quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)); Sergio's Pizza v. Soncini, 1 Va.App. 370, 373, 339 S.E.2d 204, 205 (1986).

Georgia Pacific contends that because the deputy commissioner awarded benefits based on the theory of a change in condition under Code § 65.1-99, it did not have adequate notice and a fair opportunity, upon review, to present evidence or argument in defense of a claim based on the theory that Dancy's partial disability was totally disabling because he would be required to complete a work hardening program in order to return to work. Specifically, Georgia Pacific contends that it could only have expected on review to be required to show that Dancy had not proven a "change in condition" by proving that he had ceased to receive benefits for permanent partial disability under Code § 65.1-56. Thus, Georgia Pacific argues, it had no way of anticipating, nor could it show at the review stage, whether Dancy had received or needed rehabilitative services, the lack of which was essential to the...