Oak Hill Nursing Home, Inc. v. Back
| Citation | 270 S.E.2d 723,221 Va. 411 |
| Decision Date | 10 October 1980 |
| Docket Number | No. 791734,791734 |
| Court | Supreme Court of Virginia |
| Parties | OAK HILL NURSING HOME, INC. and St. Paul Fire & Marine Insurance Company v. Ruby BACK. Record |
Colin J. S. Thomas, Jr., Staunton, Va. (Timberlake, Smith, Thomas & Moses, Staunton, Va., on brief), for appellants.
No brief or argument for Ruby Back, appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
An employer, Oak Hill Nursing Home, Inc., and its carrier, St. Paul Fire and Marine Insurance Company, claim that the Industrial Commission of Virginia determined their liability for the payment of a compensation claim without according them proper notice or a reasonable opportunity to defend.
On January 29, 1978, Mrs. Ruby Back, a laundry worker employed by Oak Hill in Staunton, suffered an injury to her right wrist while at work. Dr. John Todd diagnosed her condition as "Tenosynovitis right wrist." Oak Hill reported the accident to the Industrial Commission, and the claim was assigned file number 573-110. The parties executed a memorandum of agreement as to compensation on March 22, 1978. The employee was paid total compensation of $586.64 and returned to work on April 10, 1978. At the time the award was terminated the employee was advised that she could reopen the claim if further disability resulted. Dr. Todd saw Back on May 15, 1978, and reported to St. Paul that an examination of her wrist proved negative and that she had no complaints with regard to it.
An out-patient form executed by Dr. Eugene Nolley discloses that on September 6, 1978, Mrs. Back was seen in the emergency room of King's Daughters' Hospital, Staunton, and was examined for The patient was instructed to see her private physician, Dr. Todd. On September 14, 1978, Dr. Todd advised St. Paul and the Industrial Commission that he had examined Mrs. Back on September 8, 1978, at which time she represented to him that she had been "doing well until (September 6, 1978) when she reinjured her right hand and wrist at work while pushing the handle on a mop bucket." The physician further reported that his examination revealed tenderness, dorsally and laterally at the right wrist, hand, and forearm, which he attributed to a strain. He reported that Mrs. Back "might well have a recurrence of her tenosynovitis." Dr. Todd added: "I do not feel that I can evaluate this patient with regard to her January 29, 1978, injury at the present because of this most recent injury."
The next development was the filing by Oak Hill on September 28, 1978, of an employer's first report of accident, setting forth that Mrs. Back had allegedly suffered an injury on September 6, 1978; that her report to Oak Hill was "that she was cleaning bed (sic) and twisted her arm between bed rail and bed springs"; and that her report to a physician was that "she injured her wrist pushing a mop bucket." This employer's report showed "no lost time" from work by Mrs. Back.
On November 21, 1978, the Industrial Commission received a letter from Mrs. Back which in substance said that Dr. Todd had recommended that she not work because of her injured wrist and that she was therefore notifying the Commission. Her letter reads:
Dr. Todd pull me from work for awhile you said i was to let you no if i am un able to earn My wage. due to the injury wrist let you no. i am sorry. for not let you no sooner. i hope he let me go Back to work. He order me a support i work in it to weak it swollen up so Bad
Mrs Back.
The Commission acknowledged receipt of this letter on December 8, 1978, advising Mrs. Back, with a copy to St. Paul, that it was considering the letter as the "making of a claim." The Commission assigned the claim file number 597-978. St. Paul subsequently denied worker's compensation benefits to Back because it was unable to determine if her current problem was the result of an injury arising out of and in the course of her employment by Oak Hill.
On January 2, 1979, Dr. Todd reported to St. Paul that Mrs. Back had reinjured her right wrist on September 6, 1978, that the injury consisted of a strained right forearm, wrist, and hand, and that she had "probably developed a reoccurrence of her tenosynovitis." He doubted that Mrs. Back would be able to return to a job that required heavy work with the right wrist, and he suggested that she be retrained for a different type of work. In March, 1979, Dr. Todd referred Mrs. Back to Dr. Frank McCue of the University of Virginia Hospital. Dr. McCue confirmed Dr. Todd's diagnosis, finding, among other things, "deQuervain's and stenosing tenosynovitis of the wrist." Her condition required an operation in June, 1979, in the Waynesboro Community Hospital by Dr. McCue.
At an abbreviated hearing before Deputy Commissioner Yates, held in Staunton on June 1, 1979, Mrs. Back appeared without counsel. She was advised that her application represented that she was hurt on September 6, 1978, and that the Commission had a prior file on her for an accident that occurred in early February, 1978, involving the same employer and the same carrier. When asked what, if anything, happened on the job to require that she go to see the doctor, Mrs. Back replied:
A. And then they transferred me into-to mopping the bedrooms and then, I don't know, I felt like I twisted my hand or you know what but I went to and it kept on-on me, so I went over to the hospital and I had it X-rayed and Dr. Eugene Nolley, he X-rayed it and he sent me back to Dr. Todd.
Q. What is it you say happened on the job to cause you to have to go see the doctor to start with, what if anything?
A. Well, I don't (know) why I could have pulled it or what, my-and it just swoll continuously, you know, bad, so I went to see Dr. Todd and he said I had twisted my wrist, pulled my leters or something.
Q. Did this come on you gradually or was it a certain event on a given day that it happened or what?
A. No sir.
Q. Was it any of that? Did it come on gradually?
A. Yes sir.
Q. It developed then, over a period of days or weeks, is that what you're saying?
A. Yes sir.
Q. What happened, it finally got so bad that you went to see the doctor?
A. Yes sir.
Mrs. Back testified that she had not worked since October 31, 1978, when she "walked out" of the Oak Hill Nursing Home. She said she quit work because Dr. Todd told her the work was entirely too hard on her wrist.
On June 27, 1979, the Commission, in two opinions by Deputy Commissioner Yates, found that there was "no specific occurrence but rather a gradual onset of the problem that appears from the medical reports to be tenosynovitis which is an occupational disease"; that a condition of tenosynovitis had existed from the January 29, 1978 accident and had "reasserted" itself, although that claim was handled as a traumatic injury; and that the September 6, 1978 difficulty was a "continuation of the earlier compensable injury."
The Commission ordered that its file 597-978 be closed and consolidated into file 573-110. It treated the November 21, 1978 letter from Mrs. Back as a change in condition application, under the appropriate statutes and the Commission's Rules, for further award of compensation and medical payments.
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