Loudoun County Public Schools v. Hernandez, 011221 VACA, 0870-20-4

Docket Nº:0870-20-4
Opinion Judge:GLEN A. HUFF JUDGE
Attorney:J. David Griffin (Winchester Law Group, P.C., on brief), for appellants. Krista DeSmyter (Casey Duchesne; ChasenBoscolo Injury Lawyers, on brief), for appellee.
Judge Panel:Present: Judges Huff, AtLee and Athey Argued by videoconference
Case Date:January 12, 2021
Court:Court of Appeals of Virginia




No. 0870-20-4

Court of Appeals of Virginia

January 12, 2021


J. David Griffin (Winchester Law Group, P.C., on brief), for appellants.

Krista DeSmyter (Casey Duchesne; ChasenBoscolo Injury Lawyers, on brief), for appellee.

Present: Judges Huff, AtLee and Athey Argued by videoconference



Loudoun County Public Schools and its insurer (collectively, "employer") appeal from the decision of the Workers' Compensation Commission (the "Commission") that awarded Mirian Hernandez ("claimant") temporary total disability benefits. Employer contends the Commission erred in finding that claimant's disability is causally related to her workplace accident and that claimant adequately marketed her residual work capacity. Because both of the Commission's findings are supported by credible evidence in the record, 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 the following:

Claimant worked as a custodian for employer. She suffered a compensable neck strain, left shoulder strain, and right shoulder strain as a result of a workplace accident on February 3, 2017. By agreement, the Commission entered a stipulated order awarding claimant a lifetime medical award for those injuries as well as a period of temporary total disability benefits from October 30, 2018, through May 27, 2019.

Shortly after her injury, claimant began treating with Dr. Stephanie Clop. Dr. Clop diagnosed claimant with cervical/thoracic myofascial pain involving the upper trapezius, rhomboid, serratus and teres minor as a result of her workplace injury. Claimant continued to experience significant pain in her shoulders and neck and continued treating with Dr. Clop throughout 2018 and 2019. On May 22, 2019, Dr. Clop prescribed "work hardening" and issued a set of work restrictions for claimant: Recommended return to work max lifting, push, pull 25 lb., no weed whacking, to include no using floor buffer/stripper machine, no pushing lawn mower. Will reevaluate in 6 weeks to see if able to increase work status to full duty.

On May 27, 2019, claimant returned to work for employer in a light-duty capacity.

Claimant returned for an appointment with Dr. Clop on June 19, 2019. Claimant noted significant and increasing pain as a result of her return to work. Claimant stated that she was "unabl[e] to do continuous vacuuming, sweeping, [and that] any activity that requires strength increases her pain." Dr. Clop maintained the same diagnoses from claimant's earlier injury. Dr. Clop also continued to opine that her ongoing pain was causally related to the February 2017 accident. In addition to the existing work restrictions, Dr. Clop instructed claimant to avoid any repetitive forward flexion and extension of her shoulder with more than twenty-five pounds of force.

Due to increased pain, claimant only continued her employment with employer for four weeks. Additional follow-up appointments with Dr. Clop in July and August yielded similar results. At each, claimant presented with significant bilateral shoulder pain. At both appointments, Dr. Clop maintained the same diagnosis of claimant's injury and same general work restrictions. Following an October 30, 2019 appointment, Dr. Clop opined that claimant had reached maximum medical improvement from her injuries and that her continuing pain was a result of the February 3, 2017 injury.

At the request of employer, claimant was examined by Dr. Kevin Fitzpatrick on November 22, 2019. Dr. Fitzpatrick noted that claimant suffered from "fairly mild structural abnormalities . . . and very mild degenerative changes." He opined that claimant's complaints of pain did not appear to match the extent of her physical injuries. Dr. Fitzpatrick opined that "[t]here are no objective findings that would preclude [claimant] from returning to her prior job" and that her limitations are "exclusively related to subjective symptoms."

Claimant attempted to find other work. Claimant is an El Salvadorian immigrant who is currently afforded temporary protective status by the federal government. She has a high school education and "speaks some English and reads and writes English, 'but not perfectly.'" She does not have a home computer, but she does own a smart phone.

Claimant looked for employment in-person. She went to various businesses and asked about employment that would comply with her physical restrictions, such as cashier, hostess, receptionist, or beauty shop assistant positions. She also applied for a front desk job with employer. In total, claimant documented eighty-eight job contacts from the period of June 24 to November 15, 2019-an average of slightly more than four per week. However, claimant did not register with the Virginia Employment Commission ("VEC"). Nor did claimant utilize the internet or newspaper to find advertised job openings.

On August 8, 2019, claimant filed for temporary total disability benefits beginning on June 20, 2019. Employer defended on the grounds that claimant failed to establish a causal connection between her current injuries and the February 3, 2017 workplace accident and that claimant failed to adequately market her residual work capacity. Deputy Commissioner Kennard found that claimant satisfied her burden of proof and awarded benefits. On review, the Commission unanimously affirmed. This appeal followed.


Factual findings of the Commission are binding if supported by credible evidence in the record. Wagner...

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