Norfolk Admirals and Federal Insurance Company v. Jones, Record No. 0050-05-4 (VA 11/1/2005), Record No. 0050-05-4.
| Decision Date | 01 November 2005 |
| Docket Number | Record No. 0050-05-4. |
| Parties | NORFOLK ADMIRALS AND FEDERAL INSURANCE COMPANY v. TY A. JONES |
| Court | Virginia Supreme Court |
Robert C. Baker, Jr. (Dobbs & Baker, on brief), for appellants.
Benjamin T. Boscolo (W. David Falcon, Jr.; Chasen & Boscolo, P.C., on brief), for appellee.
Present: Judges Elder, Kelsey and McClanahan Argued by teleconference.
The Norfolk Admirals (employer) and Federal Insurance Company appeal a decision of the Workers' Compensation Commission awarding benefits to Ty A. Jones (claimant). Employer contends the commission erred in finding that: (1) claimant sustained a compensable injury by accident arising out of and in the course of employment while voluntarily engaging in a fight; (2) claimant's disability was not cumulative; and (3) claimant was justified in failing to market his residual capacity. For the reasons that follow, we affirm the commission's decision.
On appeal from a decision of the commission, "we view the evidence in the light most favorable to the prevailing party" and grant that party the benefit of all reasonable inferences. Grayson Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d 505, 506 (2002).
So viewed, the record shows that on March 29, 2002, claimant, a right-hand-dominant, twenty-two-year-old male, was employed by the Norfolk Admirals as a hockey player, playing as a right-wing power forward. On that date, claimant took the ice and, following his coach's instructions, instigated a fight with an aggressive opposing player. As a result of the fight, claimant was sent to the penalty box, at which time he noticed that his right shoulder was sore and he could not lift his arm. At the end of the game, claimant went immediately to the team doctor to report the injury.
Following the injury, claimant took several days off with the agreement of employer's head athletic trainer, Kevin "Stu" Bender. Claimant's agent recommended that he not participate in the playoffs because he had been injured and did not yet have a contract for the 2002/2003 hockey season. Despite continuing problems, claimant played in the first round of the playoffs, but the team lost in that round, and the season ended on April 20, 2002.
On April 1, 2002, claimant sought treatment from Dr. R. Brick Campbell, an orthopedic surgeon "who worked with the employer's hockey team and supervised the employer's trainer, [Kevin "Stu"] Bender." Dr. Campbell recommended physical therapy, but when claimant's condition did not improve, Dr. Campbell ordered a right shoulder MRI, which was performed on April 24, 2002. As a result of the MRI, Dr. Campbell diagnosed lesions of the anterior, inferior, and posterior labrum.
On May 16, 2002, Dr. Campbell performed surgery on the claimant's right shoulder, which included the insertion of six screws. A copy of the operative report was provided to employer's head trainer, Stu Bender. Following the surgery, Dr. Campbell told claimant not to "bring" his shoulder "[past] probably 60 degrees up," to wear a sling for six months in order to let the shoulder heal, and to "take six months off" from work "and then see how it feels." Claimant wore the sling for "almost the full six months," taking it off only when he went to bed. Dr. Campbell also prescribed an intensive "rehab protocol" and predicted claimant would be able to return to hockey on November 15, 2002.
By early June 2002, claimant returned home to Spokane, Washington. There, he came under the care of Physical Therapist Matthew Gores and Orthopedic Physician Russell VanderWilde, who helped him implement Dr. Campbell's rehab protocol. Gores agreed with Dr. Campbell's prognosis, opining that claimant's "[o]verall rehabilitation potential is excellent," and he recommended "skilled rehabilitative therapy in conjunction with a home exercise program," which was to last "until [claimant] reports for training camp." Claimant testified that he was "involved in rehab . . . five days a week . . . [so he] couldn't work during [the] period of time" through November 15, 2002. He admitted, however, that during the summer months, he was able to take a trip to Alaska, where he fished for "minor little fish" like "trout" and aggravated his shoulder injury while pushing himself out of a rental car. In mid-July, he reported doing "some putting and chipping," saying that "it went pretty good," but when he asked Dr. VanderWilde on July 19, 2002, if he could engage in such activities, Dr. VanderWilde "would not clear him for [such activities]" at that time. The record is silent as to whether claimant engaged in golf-related activities again prior to mid-September, when Dr. VanderWilde opined he could play golf.
Both Physical Therapist Gores and Dr. VanderWilde routinely provided copies of their office and progress notes to employer's head trainer, Stu Bender. Claimant and Gores remained in contact with Bender, who told claimant "to continue to take it really easy." Bender also gave advice on claimant's rehabilitation and the types of rehabilitation and leisure activities in which he thought claimant should or should not engage. Claimant's rehabilitation with Gores included range of motion work, strength training, and aerobic conditioning. When Dr. VanderWilde opined on August 30, 2002, that claimant could "play golf" and "start some stick work" "in a non-contact situation" in mid-September, Bender "told [claimant] not to do these things yet." On September 27, 2002, Dr. VanderWilde noted that claimant "look[ed] good for return," but that he needed to "continue to work on his strengthening and then follow-up with Dr. Campbell prior to returning to competition in mid-November." On October 24, 2002, Physical Therapist Gores noted that he and claimant planned to review claimant's "workout book from the Blackhawks," and on November 4, 2002, claimant noted he had been trying to get in touch with Stu Bender and that he "need[ed] to be ready to fight" when he returned to the Admirals because "[t]hey have no toughness on the team."
Claimant continued to participate in rehabilitation through at least November 15, 2002. Dr. VanderWilde opined claimant was "totally disabled from professional hockey through that date," but said he still "anticipate[d]" that claimant "will return to his professional hockey career without any long-term restrictions." For reasons not apparent from the record, claimant did not return to play for the Norfolk Admirals and began to play for the Anchorage Aces in February 2003.
On the issue of causation, Dr. Campbell opined that the fight claimant participated in on March 29, 2002, materially aggravated a previous injury to the claimant's right shoulder. Dr. VanderWilde also opined that the treatment required for claimant's shoulder in 2002 was caused by his March 29, 2002 injury. Claimant acknowledged that he had pre-existing right shoulder problems but said that he had not suffered from any such problems during the three months prior to March 29, 2002 and that the type of pain he experienced after the fight on that date was more severe than any shoulder pain he had experienced previously.
Claimant sought medical and disability benefits, including temporary total disability for the period from April 20 through November 15, 2002. Following a hearing on June 1, 2004, the deputy awarded the requested benefits. He concluded claimant suffered an injury by accident arising out of and in the course of his employment and that claimant was entitled to temporary total disability compensation through November 15, 2002, when claimant was released back to work as a hockey player.
On employer's request for review, the commission agreed with the deputy's conclusion that claimant's altercation during the March 29, 2002 hockey game arose out of and in the course of his employment and constituted an "accident" as contemplated by the Act. It also held credible evidence supported the finding that claimant in fact suffered an injury that "materially aggravated his pre-existing shoulder condition." Finally, on the issue of marketing, the commission held as follows:
[W]e conclude that the claimant was not required to market any residual physical capacity that he may have had from May 16 to November 15, 2002, because of his profession as a hockey player and his reasonable belief that he would be able to return to that profession following his surgery. The record shows that claimant engaged in a strenuous rehabilitation program during the months following his surgery in an effort to return to his pre-injury job as a hockey player. The record also reflects that the claimant participated in this program at the direction of the employer's doctor, Dr. Campbell. Thus, given the unique circumstances of this case, we conclude that the claimant's need to concentrate on strengthening himself during the months following his shoulder surgery and preceding the next hockey season affected his capacity to find alternative employment from May 16 through November 15, 2002, and relieved him of any obligation of seeking alternative employment during this period as a condition of receiving disability compensation.
The commission affirmed the deputy's award of benefits, and this appeal followed.
"In order to establish entitlement to compensation benefits, the claimant must prove, by a preponderance of the evidence, [(1)] an injury by accident which arose [(2)] out of and [(3)] in the course of his employment." Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989); see also Code § 65.2-101. Employer argues that because claimant was the aggressor in voluntary combat, the injury did not arise out of his employment. Claimant argues that he suffered an accidental injury as a result of a fight ...
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