Rich v. Facebook Inc. Va Ocip
| Decision Date | 10 May 2022 |
| Docket Number | 1154-21-3 |
| Parties | GLENN RICH v. FACEBOOK INC. VA OCIP, CHUBB INDEMNITY INS. CO. AND ESIS, INC. |
| Court | Court of Appeals of Virginia |
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Hannah Bowie (Brandon S. Osterbind; Kelly A. Osterbind; Osterbind Law, PLLC, on briefs), for appellant.
Brian J. McNamara (Scott C. Ford; Ford Richardson, PC, on brief) for appellees.
Present: Judges Russell, Friedman and Callins Argued at Salem, Virginia
Glenn Rich suffered a compensable injury to his left foot while working for Facebook, Inc., [1] and the Commission awarded him lifetime medical benefits for this injury. When Rich later sought payment for specific treatment he received for deep vein thromboses (DVTs) in his left leg, the Commission denied his claim on res judicata grounds. Rich appeals arguing that the Commission erred in concluding his claim was barred. For the following reasons, we affirm the judgment of the Commission.
BACKGROUND[2]
Rich was employed by employer as a safety compliance professional. He sustained a compensable injury on October 17, 2018, while at his job site when he stepped on a pipe and rolled his foot. He sought treatment at Patient First the following day and was referred to OrthoVirginia, where he was treated primarily by Dr. Zdzislaw Ratajczak. Rich was diagnosed with "[n]ondisplaced fracture of fifth metatarsal bone" in his left foot. Rich initiated a claim for workers' compensation benefits on November 4, 2018. He asserted that he had injured his "5th Metatarsal bone, left foot" when he "[s]tepped on a capped [] piece of pvc that was stubbed up [] through a concrete slab/floor."
Dr Ratajczak treated the foot fracture with a short-leg cast and directed Rich to use crutches to keep weight off his left foot. Over the next few months, Rich had repeated follow-up appointments with Dr. Ratajczak. Depending on Rich's clinical indications at various times, Dr. Ratajczak provided him with either "no work" or restricted "sedentary duty" notes. Rich progressed from a cast to a high tide moon boot. On December 21, 2018, Dr. Ratajczak observed "near complete healing of a fifth metat[arsal] base fracture" and noted that "the patient is almost healed." He further reported that Rich had "state[d] his pain has improved . . . and he has improved." After a January 11, 2019 appointment, Dr. Ratajczak concluded that Rich was permitted to be "[f]ull weight bearing in normal shoes[, ]" but the doctor continued to recommend that Rich be restricted to light-duty work with "[n]o climbing ladders or running."
In February 2019, Rich experienced significant swelling in his foot and leg. Upon referral from Dr. Ratajczak, Rich visited Central Lynchburg General Hospital, where an ultrasound revealed that he was "positive for [DVT] in the left lower extremity[.]" Rich was then referred to Stroobants Centra Cardiovascular Center (Centra), where he began seeing Dr. Evan Ownby, a cardiologist. Dr. Ownby prescribed Xarelto and recommended a compression stocking.
By letter dated April 25, 2019, Rich informed the Commission that, because he had "sustained injuries to his left foot while in the course of his employment[, he] is requesting compensation for (a) TTD and/or TPD benefits from 10/17/2018 to present and continuing." Rich further relayed that he "is also requesting (b) compensation for permanent partial disability, when rated and reaching maximum medical improvement." The Commission accepted the letter as Rich "filing a claim in [this] matter."
Experiencing chest pains and faintness, Rich went to the emergency room, once in April and again in May 2019. Upon Dr. Ratajczak's referral in May 2019, Rich sought further foot treatment with Dr. Michael Diminick, who performed surgery on Rich's left foot. Rich's fracture was healed with the insertion of a pin, but he continued to experience DVTs complications.
On June 11, 2019, Rich filed an application for hearing seeking "reimbursement for lost wages" suffered after being "terminated from my job due to unsatisfactory attendance, which is a direct result of multiple doctors' appointments . . . and my inability to walk due to intermittent pain and numbness' of my left foot."[3] Rich asserted, "This is a byproduct of OrthoVA Dr. Ratajczak's failure to recognize and treat me early on for blood clots in my left leg that were a direct result of my left foot 5th [m]etatarsal [f]racture." Rich noted, "My injury date is 10/17/201[8], and the date I was diagnosed for my blood clots . . . [is] 02/08/2019." Rich additionally sought payment for bills "related to care [he] received for [his] 5th [m]etatarsal [f]racture left foot and left leg blood clots[, ]" including Xarelto and compression stockings, as Dr. Ownby specifically had prescribed to treat his DVTs.
In discovery, Rich was asked to "[s]tate each and every injury that you contend you suffered as a result of your alleged accidental injury." Rich responded, In his pre-hearing statement, Rich claimed as "body parts alleged to have been injured" his "[l]eft foot injury" and "left leg DVT."
A hearing was held before a deputy commissioner on October 16, 2019, to address Rich's requests for wage compensation and medical benefits. At the beginning of the hearing, the deputy commissioner confirmed that the purpose of the hearing was to address Rich's "claims which were filed on November 4, 2018, April 25, 2019, and two claims on June 11, 2019[, ] in regards to an accident which occurred on October 17, 2018." Having confirmed that, the deputy commissioner sought to ascertain if the parties had been able to agree regarding at least some of the issues raised by the multiple claims asserted by Rich. In the "STIPULATIONS" section of her opinion, the deputy commissioner summarized the stipulations of the parties as follows:
The parties stipulated to an average weekly wage of $1, 300.44. The [employer] stipulated to a compensable injury to the left foot 5th metatarsal. The [employer] also stipulated to temporary total disability from October 24, 2018 to October 30, 2018; from November 14, 2018 to November 23, 2018; and from May 18, 2019 to July 26, 2019.
Notably absent is any mention of a stipulation regarding Rich's DVTs.[4]
At the hearing, Rich testified to how he injured himself, his course of treatment with respect to his fracture and DVT treatment up to that point, and his confusion as to his work status over the relevant periods. Included in the medical records he introduced were reports from OrthoVirginia, Central Lynchburg General Hospital, and Centra. Centra reported several times that Rich's DVTs are "felt to be provoked and [secondary to] his left foot [fracture.]" Employer presented Rich's numerous work status notes.
On October 18, 2019, the deputy commissioner issued an opinion addressing the "claims filed . . . in regards to injuries to the left foot and the 5th metatarsal bone that occurred on October 17, 2018." Recounting that employer had "stipulated to a compensable injury to the left foot 5th metatarsal[, ]" but disagreed with the periods of disability, the opinion expressed that, "[g]iven the stipulation . . . of a compensable injury, we mostly look to the medical records in regards to work status." The opinion noted Rich's DVTs and cardiology referral among the findings of fact, but it did not address the cause of the condition and the ultimate award did not specifically mention treatment for it. Instead, Rich was awarded "medical benefits . . . for as long as necessary for reasonable, necessary and authorized treatment causally related to the claimant's October 17, 2018 injuries to the left foot and the 5th metatarsal bone."[5] Rich's claim for PPD benefits was reserved. Neither party sought review of the deputy commissioner's decision, and the award became final.
Although Rich's broken foot healed, he continued to experience pain and swelling related to DVTs. Rich remained in Dr Ownby's care, but towards the end of 2019, he was not feeling as though he was making sufficient improvement. Also encountering difficulty in scheduling appointments, Rich asked Dr. Diminick for a referral for a second opinion; Dr. Diminick provided him a referral to the cardiology department at the University of Virginia (UVA). Rich then received tests and care at UVA. UVA recommended supplements and angiography. Rich followed the recommended treatments and underwent the surgery in June 2020.
On August 19, 2020, Rich filed with the Commission a "motion to compel payment" requesting "an order . . . compelling [employer] to pay for all treatment related to [his] DVT which occurred as a result of his workplace injury, reimbursement for all medical expenses [he] has paid out of pocket, and reimbursement for mileage to and from his appointments at UVA . . . ." In support of his motion, Rich cited the deputy commissioner's award letter and stated that his treating physician had referred him to UVA Cardiology to address the issue with DVTs and that, according to the physician, the referral was "medically necessary to address [his] DVT diagnosis caused by his work injury on October 17, 2018."
Employer objected, arguing that Rich's award for medical benefits was limited to the "left foot and the 5th metatarsal bone" and that he "was not awarded benefits associated with DVT/'left leg blood clots.'" Citing this Court's decision in Brock v. Voith Siemens Hydro Power Generation, 59 Va.App. 39 (2011) employer contended Rich's motion was barred by res judicata because, in addition to...
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