J. A. Jones Const. Co. v. Martin

• Decision Date: 04 September 1956
• Docket Number: No. 4565,4565
• Citation: 198 Va. 370,94 S.E.2d 202
• Court: Virginia Supreme Court
• Parties: J. A. JONES CONSTRUCTION COMPANY AND AETNA CASUALTY AND SURETY COMPANY v. GEORGE L. MARTIN Record

Page 202

94 S.E.2d 202

198 Va. 370

J. A. JONES CONSTRUCTION COMPANY AND AETNA CASUALTY AND SURETY COMPANY v. GEORGE L. MARTIN

Record No. 4565.

Supreme Court of Appeals of Virginia

September 4, 1956.

John B. Spiers, Jr. (Spiers & Spiers, on brief), for the appellants.

Ernest W. Ballou (W.R.L. Craft, Jr., W. G. McGhee, on brief), for the appellee.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the Court.

On January 10, 1953, George L. Martin, hereinafter referred to as the claimant, who was employed by J. A. Jones Construction Company as an ironworker at Radford, Virginia, suffered an injury to his back in the course of his employment. The injury was first diagnosed as a strained back, but was later found to be a 'herniated nucleus pulposus' or ruptured disc. The condition was corrected by an operation performed by Dr. Edgar N. Weaver at a Roanoke hospital on April 11, 1953. Dr. Weaver's report of July 17, 1953, to the insurance carrier stated that claimant's 'postoperative course was smooth,' that he was discharged from the hospital on April 18, and after a checkup on May 18 was told that he 'had fully recovered and was advised to return to work.'

Claimant returned to work for the same employer on May 25 and was assigned to 'light work' at his previous regular average weekly wage of $104. He continued at such work until January 15, 1954, when his employment was terminated because of 'a reduction in force.'

In the meanwhile, pursuant to an agreement approved by the Commission, claimant was awarded compensation of $25 a week fortemporary total disability ending on the date he returned to work.

The claimant filed application for a review of the award on the ground of 'a change in condition' under Code, s65-95. ¹ The employer and insurance carrier defended on the grounds that (1) The application had not been filed within the time required by the section, and (2) There had been no change in claimant's condition since the date of the last payment of compensation pursuant to the previous award.

he hearing commissioner filed a written opinion holding that the claim for additional compensation 'was reopened as of March 5, 1954,' and that claimant was suffering from a 'general partial disability which prevents him from engaging in heavy work.' Accordingly, additional compensation was awarded. Upon review the full Commission affirmed the award and the employer and insurance carrier have appealed. They make the same contentions before us as they asserted before the Commission.

We agree with the Commission that claimant made a sufficient and timely application for review. The pertinent facts are not in dispute. On March 4, 1954, claimant wrote the Commission:

'I was off from work for a while last year due to an injury. When I went back to work I was put on light work. I worked until Jan. 15, 1954 and was laid off. The Dr. won't let me go back to work at any other job. He said my back wouldn't stand heavy work. The Dr. is Edgar N. Weaver in Roanoke, Va.

'I have had to turn down two jobs on account of my back.

'Please let me hear from you about this.'

The Commission forwarded a copy of this letter to the insurance carrier which replied that it felt that claimant 'is able to work and is simply asking for relief because he has been terminated.' Accordingly, the carrier said, 'We do not voluntarily expect to pay additional compensation in this case.'

On March 15 the Commission wrote claimant of the attitude of the insurance carrier and enclosed an application blank for a hearing which claimant was told should be filled out and returned to the Commission. This letter further said: 'Your right to additional compensation would be considered as of March 5th, the date your letter was received by the Commission.' A copy of this letter from the Commission to claimant was sent to the insurance carrier.

Claimant failed to comply promptly with the suggestion of the Commission that he fill out and file with it a formal application for a hearing, and on June 10 and July 1 the Commission again wrote him that he should do so. Copies of these letters were also sent to the insurance carrier.

Finally, on November 1, 1954, claimant filed with the Commission a formal application for a hearing on his claim for additional compensation, alleging that because of the accident on January 10, 1953, he had sustained a permanent spinal injury and was 'unable to follow any gainful occupation.'

In the answer filed on January 8, 1955, for the first time the contention was made that the application for review had not been filed in time.

It is true that application on the prescribed form was not filed until November 1, 1954, which was more than twelve months after the date of the last payment of compensation, May 25, 1953. But claimant's letter of March 4, 1954, received by the Commission on the following day, referred to his accidental injury, to the fact that he was incapacitated thereby to the extent that he could not do heavy work, and that because of his disability he had been denied employment.

It is quite clear from what has been said that the claimant, the employer, the insurance carrier and the Commission treated this letter as a sufficient and timely application for a review of the previous award. We hold that under the circumstances it was. See Wise Coal & Coke Co. v. Roberts, 157 Va. 782, 788, 161 S.E. 911.

The appellants' next contention is that 'a change in condition' which warrants a review of the former award under section 65-95 means an actual change in the physical condition of claimant; that under the evidence adduced there was no showing of such change and hence there was no basis for a review of the award.

In an application for a review of an award on the ground of a change in condition, under section 65-95, the burden is on the party alleging such change to prove his allegation by a preponderance of the evidence. Wise Coal & Coke Co. v. Roberts, supra, 157 Va., at page 789; J. A. Foust Coal Co. v. Messer, 195 Va. 762, 765, 80 S.E.2d 533, 535; Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 852, 80 S.E.2d 537, 538.

In the present case the Commission did not decide whether the evidence showed that there had been a change in the physical condition of claimant since the date of the previous award. But the clear implication from its written opinion is that there was no such showing, and such is the inescapable effect of claimant's own testimony.

The claimant testified that after the accident of January 10, 1953, and the corrective operation by Dr. Weaver on April 11, he was not able to resume his strenuous duties as an ironworker but could do only 'light work.' He said that when he returned to work for Jones Construction Company on May 25 he was assigned 'to light work' and continued with such until the termination of his employment on

January 15, 1954. His foreman, O. H. Farmer, testified to the same effect.

The claimant further testified that from April 20 to August 20, 1954, he was employed as an ironworker at Bluefield, Virginia, but was allowed to perform only 'light work.' Again, he said that from September 7 to 10, 1954, he was employed as a riveter by the Tennessee Valley Authority but that his employment there was terminated when it was found that he should not lift any weight in excess of 35 pounds.

On direct examination he testified as follows:

'Q. Is that (light work) the only type of work you have been able to do since the date of your injury? A. Yes, sir, light work is all.'

On redirect examination he testified thus:

Q. Mr. Martin, just explain briefly, the only work you have ever been able to do since you were operated on for this injury has been light work, is that right? A. That's right.

'Q. And is that the only work you have done? A. Yes, sir.'

This testimony of claimant is, of course, binding on him. Wise Coal & Coke Co. v. Roberts, supra, 157 Va., at page 789; Blair v. Buchanan Coal Corp., 171 Va. 102, 104, 198 S.E. 491, 492.

The only evidence which tends to support the view that there was a change in claimant's physical condition subsequent to the former award is found in the reports of Dr. Weaver. As has been said, Dr. Weaver reported to the insurance carrier on July 17, 1953, that claimant had had a good recovery from the operation, that he had been discharged from the hospital on April 18, and that after a checkup on May 18 he had been found to have 'fully recovered and was advised to return to work.'

On February 15, 1954, Dr. Weaver wrote the employer and insurance carrier that claimant had been to see him on February 2, 'stating that he is unable to perform his duties as an ironworker. It is my impression that he is able to perform light duties, but I do not feel that he is physically able to do the heavy type of work which he had been accustomed to doing as an ironworker before his recent spinal operation.' It is significant that in this report there is no suggestion that there had been any change in claimant's condition since the physician's previous report of July 17, 1953.

On July 30, 1954, Dr. Weaver reported to the insurance carrier that he had examined claimant on July 28, and that 'It is my impression that this patient has recovered satisfactorily from his operation and is able to return to his usual duties.' However, on October 5, Dr. Weaver reported to the insurance carrier that he had again examined claimant on September 20 and that in view of claimant's experience with the Tennessee Valley Authority he (Dr. Weaver) desired to modify his report of July 30 and had reached the conclusion that claimant was not then, and would never be, able to do the type of work that he was doing before his injury. He recommended that claimant 'be given 15% total disability to the body as a whole.'

It will be observed that none of these reports shows any change in claimant's actual condition. They merely show that Dr. Weaver had changed his opinion as expressed in...