LINES v. KERR
| Decision Date | 12 April 2011 |
| Docket Number | Record No. 1345-10-4 |
| Court | Court of Appeals of Virginia |
| Parties | ATLAS VAN LINES AND LEGION INSURANCE COMPANY v. EDWARD J. KERR |
OPINION TEXT STARTS HERE
Present: Judges Powell, Alston and Senior Judge Annunziata
Argued by teleconference
MEMORANDUM OPINION* BY
Andrew M. Alexander (Semmes, Bowen & Semmes, on briefs), for appellants.
Peter J. Jones for appellee.
Atlas Van Lines and Legion Insurance Company (employer) appeal a majority decision of the Workers' Compensation Commission (the commission) awarding Edward J. Kerr (claimant) varying amounts of temporary partial disability benefits. Employer argues that the commission erred in finding that (1) claimant's claim was a change-in-condition application pursuant to Code § 65.2-708, rather than an application filed pursuant to Code § 65.2-501; (2) claimant made reasonable efforts to market his residual work capacity; and (3) claimant was partially disabled as a result of his work injury. For the reasons stated below, we affirm.
Claimant and his wife worked together in the moving business for many years. Both before and after claimant's injuries in 2000, he worked in partnership with his wife as the owners and operators of a moving company that performed residential and commercial moves exclusively for employer. The moving jobs required claimant and his wife to pack, load, deliver, unload, and unpack residential and commercial property for employer's clients. On June 19, 2000, claimant suffered a compensable injury to his back. Two days later, he suffered injuries to his back and right ankle, found to be compensable consequences of the June 19, 2000 injury.
As a result of these injuries, claimant was awarded various periods of temporary total disability benefits, temporary partial disability benefits, and permanent partial disability benefits. In 2003, a deputy commissioner of the commission determined claimant's pre-injury average weekly wage was $1,078.60. The deputy commissioner determined claimant's average weekly wage by dividing in half the profits of his partnership with his wife. In 2004, the full commission affirmed the deputy commissioner's decision. It further ruled that claimant's temporary partial disability benefits were to be determined quarterly and adjustments in claimant's temporary disability benefits would be made within 30 days of the end of each quarter.
During the years following the 2000 accident, claimant continued to work as a mover and received specialized care for his injuries. Dr. Steven Hughes treated claimant's back injury, and Dr. Stephen Neufeld treated claimant's ankle injury. In 2001, Dr. Hughes performed a number of procedures on claimant, and in May 2001, he released claimant to return to modified duty with no lifting of more than 30 pounds on a frequent basis; breaks of 15 to 30 minutes every 2 hours while driving; and no pushing or pulling more than 30 pounds. In February 2002, Dr. Hughes opined that claimant had reached maximum medical improvement. The following year, he opined that the May 2001 restrictions were permanent.
Dr. Neufeld operated on claimant in December 2003, and in May 2004, he released claimant to full duties without restrictions, although he suggested that claimant use custom orthotics to relieve the stress on his foot and ankle. In July 2006, Dr. Neufeld again examined claimant, and the following month, he stated that claimant could return to his pre-injury job as a driver without limitations on driving. In October 2006, he re-evaluated claimant and diagnosed synovitis and anterior lateral impingement syndrome and an osteochondral defect in the talar dome of the right foot. He prescribed a brace for claimant's ankle.
On May 4, 2006, Dr. John Bruno examined claimant. He opined that claimant suffered a 5% permanent impairment of the lower left extremity and a 22% permanent impairment of the lower right extremity. Dr. Bruno noted, "There is no history of any related problem."
On September 7, 2006, and October 10, 2006, Dr. Hughes again treated claimant for his back injury. In his September 2006 report, Dr. Hughes noted, Additionally, Dr. Hughes noted claimant's past surgeries: "Status Post L4-S1 Diskectomy; Hernia Repair in 01/03; Ankle surgery in 01/04." In the October 2006 report, Dr. Hughes reiterated the restrictions he placed on claimant in May 2001. He opined that claimant had reached maximum medical improvement and stated that no further diagnostic or treatment options would be "pursued as they are unlikely to alter [the] ultimate outcome or be health beneficial." Dr. Hughes further stated, In a November 2006 follow-up medical questionnaire, Dr. Hughes stated that claimant's restrictions were caused by the back injuries claimant sustained in the 2000 industrial accident and that claimant's injuries were permanent.
On February 9, 2007, the commission entered a stipulated order, awarding claimant permanent partial disability benefits for impairment to the right lower extremity and left lower extremity. On March 6, 2007, the commission entered an amended stipulated order, awarding "38.5 weeks of permanent partial disability benefits at the rate of $567.00 per week beginning July 6, 2006, for [claimant's] right lower extremity permanent partial impairment" and "8.75 weeks of permanent partial disability benefits at the rate of $567.00 per week beginning May 4, 2006 for [claimant's] left lower extremity permanent partial impairment."
On July 17, 2007, claimant filed a claim for temporary partial disability benefits for the first quarter of 2007, which ended March 31, 2007. On September 19 and 20, 2007, Deputy Commissioner Colville conducted a two-day hearing regarding this claim. During this hearing, claimant and his wife both testified that claimant could not earn as much money post-injury due to his driving restrictions; however, claimant also admitted that he had driven longer hours in violation of the restrictions placed on him by Dr. Hughes. Deputy Commissioner Colville issued his opinion on October 31, 2007. He awarded claimant temporary partial disability benefits for the period spanning January 24, 2007, to March 31, 2007, over employer's objection. This decision was later reversed by the full commission in March 2008. The commission found that the first quarter of the year was typically a less lucrative quarter for the moving industry and claimant failed to look for another job during that period to supplement his earnings from employer. According to the commission, this failure to market his work capacity precluded claimant from receiving an award of temporary partial disability benefits.
The commission subsequently vacated its March 2008 opinion at claimant's request. On July 22, 2008, the commission issued a new opinion. It again reversed the deputy commissioner's October 31, 2007 award of temporary partial disability benefits for the period spanning January 24, 2007, to March 31, 2007, finding that claimant failed to prove he adequately marketed his residual work capacity.
Between January 1, 2008, and February 18, 2008, claimant earned an average weekly wage of $561.71 while working for employer. On February 18, 2008, claimant stopped working for employer because he had found new employment with E. F. Thompson, a trucking company that hauled mail for the United States Postal Service; however, claimant was not able to begin working for E. F. Thompson until March 15, 2008. Claimant testified that he sought new employment because the work offered by employer was not always steady from month to month and it was physically strenuous. According to claimant, E. F. Thompson offered him an opportunity that did not require him to drive long distances, nor did the new job opportunity require him to spend as much time packing, lifting, and loading shipments.
On April 4, 2008, claimant filed a claim for temporary total disability benefits from the period commencing on January 4, 2008. This claim was later amended to request temporary partial disability benefits for the period between January 1, 2008, and February 18, 2008. He subsequently filed additional claims for other time quarters as well.
Claimant was working for E. F. Thompson in March 2009 when he was unable to work due to back pain for ten days spanning March 9, 2009, to March 19, 2009. He attempted to obtain medical treatment, but he did not receive authorization from his insurance carrier to see Dr. Hughes for five weeks.
On April 10, 2009, an evidentiary hearing regarding claimant's claims, including the April 4, 2008 claim, was held before Deputy Commissioner Colville. These claims, some of which were amended prior to the hearing, were as follows: temporary partial disability benefits from January 1 through February 18, 2008, based upon an average weekly wage of $561.71; temporary total benefits from February 19 through March 14, 2008; and intermittent temporary partial benefits from March 15 through June 15, 2008; June 30 through July 13, 2008; July 28 through August 24, 2008; September 8 through October 5, 2008; November 3 through November 16, 2008; December 15 through December 28, 2008; and January 12, 2009 and continuing. All of these claims were filed more than one year, but less than two years, after claimant received his last disability benefit under the March 6, 2007 amended stipulated order.1
At this hearing, claimant testified that he was 58 years old and had attended college for three and one half...
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