Smith v. Dominion Technical Solutions & Va. Elec. & Power Co.
| Decision Date | 27 January 2015 |
| Docket Number | Record No. 0475-14-3 |
| Court | Virginia Court of Appeals |
| Parties | ROGER SMITH v. DOMINION TECHNICAL SOLUTIONS AND VIRGINIA ELECTRIC AND POWER COMPANY |
UNPUBLISHED
Present: Chief Judge Huff,* Judge Petty and Senior Judge Annunziata Argued at Lexington, Virginia
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Amber H. Russo (HammondTownsend, PLC, on briefs), for appellant.
Arthur T. Aylward (Emily O. Sealy; Midkiff, Muncie & Ross, P.C., on brief), for appellees.
Roger Smith (claimant) appeals a decision of the Workers' Compensation Commission (the commission) denying his claim for temporary total disability benefits beyond January 29, 2013. Claimant contends the commission erred by finding he failed to prove he was totally disabled after January 29, 2013. Dominion Technical Solutions and Virginia Electric and Power Company (collectively employer) list seven assignments of cross-error alleging the commission erred by (1) finding that claimant "proved that he sustained a compensable injury by accident on March 8, 2012," (2) finding that "the discrepancies in [claimant's] descriptions of the accident in the medical records were 'minor,'" (3) finding that claimant provided employer with timely notice of his injury, (4) finding that the deputy commissioner "'implicitly found that [] claimant provided notice less than 24 hours after his injury by accident,'" (5) finding that claimant "could not haveinformed his medical providers about a work accident without also informing" employer, (6) awarding claimant medical and indemnity benefits beginning March 9, 2012, and (7) "not addressing [employer's] defenses of no proof of continuing disability and failure to market wage earning capacity."
We hold the commission erred in finding claimant failed to prove he was totally disabled after January 29, 2013. We further find no merit in the employer's assignments of error. Thus, we reverse the commission's decision in part and affirm in part.
On appeal, we view the "evidence and all reasonable inferences that may be drawn from that evidence" in the light most favorable to the party prevailing before the commission. Artis v. Ottenberg's Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).
Claimant worked as an electrical equipment specialist for employer. His work included moving and lifting heavy objects. On March 8, 2012, claimant and a co-worker were unloading a capacitor checker stored in a large trunk. Claimant testified that as he was removing the trunk from a work van, he felt a sharp pain in his lower back. His back began to "stiffen up" after he lowered the trunk. Claimant explained he did not immediately mention the incident to his co-worker beyond commenting that he was "getting old." Another co-worker arrived a short time later, and claimant went home without telling either of them in detail about his injury.
Claimant testified he was in more pain when he awoke the next morning, and he called his supervisor, Todd Ragland. Claimant spoke to Ragland several times over the course of the following week and advised Ragland about his injury. However, Ragland, to the contrary, testified he was not aware that claimant had been injured at work until November 2012, at which time he instructed claimant to prepare a written statement regarding the accident. When claimant's available leave was exhausted, employer terminated his employment.
Claimant sought treatment at a hospital emergency department on the morning of March 9, 2012. On March 12, 2012, he was evaluated by Dr. Scott M. Seaton, was referred to physical therapy, and placed out of work from March 10 through March 15, 2012 as a result of his back pain.
Dr. James R. Reid, claimant's primary care physician, first treated claimant on March 23, 2012. Dr. Reid saw claimant again on April 10, at which time he placed claimant out of work from March 9 through May 10, 2012. On July 18, 2012, Dr. Reid again placed claimant out of work. On January 13, 2013, in response to an inquiry from a disability benefits specialist, Dr. Reid explained that claimant was in severe pain, was restricted from lifting, walking, and standing and was unable to work in any capacity. The physician's prognosis for improvement in claimant's condition was "very poor - - headed for SSI/permanent disability."
Nineteen days later on January 29, 2013, Dr. Reid reexamined claimant and, while he did not specifically repeat that claimant was unable to work, he did not alter his earlier assessment. He reported claimant "clearly is unable to sit for extended periods of time, concentrate, and after 30 minutes, is completely exhausted and fatigued." Dr. Reid advised claimant to continue his use of prescribed medication and to return in two months. He did not modify or comment on the claimant's work status.
The January 29, 2013 visit with Dr. Reid was claimant's last medical consultation prior to the deputy commissioner's hearing. However, in the intervening time, claimant was deposed on March 11, 2013 and questioned about his condition. At the time of the deposition, claimant stated that he was consistently experiencing "a pain level of seven to eight" and that he was taking three different pain medications on a daily basis. He detailed his inability to lift heavy objects and his need for assistance from relatives. Claimant testified that "[a]nything [he] do[es] that compresses [his] back, even vibration, . . . really hurts." He indicated he becomes "veryuncomfortable" just from "walking, sitting, [or] standing" and that his "concentration level is somewhat very hard." Claimant also stated he no longer attended physical therapy sessions because his doctor advised him they would not provide further benefit. He testified, "[My doctor is] basically telling me, 'you've got to live with the quality of life that you have.'" He also confirmed that his "doctors have [him] totally out of work" and that he did not have the "capacity [for] handling work," even light work.
Four months later on July 31, 2013 when claimant testified at the deputy commissioner's hearing, his condition had not improved. Indeed, claimant specifically testified his condition was worse than it had been the year before, explaining that he "[couldn't] do anything that [he] used to be able to do," that the condition has affected his "bladder and [his] colon," and that "any type of vibration tears [his] back up."
The deputy commissioner concluded claimant "established that he suffered a compensable injury by accident as described" and that he "is unable to work in any capacity." The deputy commissioner expressly premised his decision on "the consistent medical records and the claimant's credible demeanor at the hearing[.]"
On appeal, the full commission reversed the portion of the deputy commissioner's opinion awarding claimant temporary total disability benefits beyond January 29, 2013. In concluding claimant failed to meet his burden to prove he continued to be totally disabled the commission emphasized the record did not include any recent medical evidence. The remainder of the deputy commissioner's opinion was affirmed. This appeal followed.
"There is no presumption in the law that once a disability has been established, a claimant will be assumed to remain disabled for an indefinite period of time." Marshall Erdman &Assocs. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997). "Unless we can say as a matter of law that the evidence submitted by claimant sustained his burden of proof, the commission's determination is binding upon this Court." Donovan v. United Parcel Service, Inc., 63 Va. App. 438, 445, 758 S.E.2d 99, 102 (2014) (citing Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970)).
VEPCO v. Kremposky, 227 Va. 265, 269, 315 S.E.2d 231, 233 (1984). See also Frey v. Gunston Animal Hospital, 39 Va. App. 414, 419, 573 S.E.2d 307, 309 (2002). "In other words, the commission's decision, unlike one based on conflicting facts, is not conclusive; rather, it is subject to our determination whether '"the correct legal conclusion has been reached."'" Id. (quoting Eccon Const. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981)). See also Breckenridge v. Marval Poultry Co., 228 Va. 191, 195-96, 319 S.E.2d 769, 772 (1984).
Applying this standard of review, we conclude that claimant proved his disability continued after January 29, 2013 as a matter of law based on the following evidence: the medical records that established the specific disabilities claimant suffers; the prognosis of likely permanency made by the claimant's physician; the claimant's unimpeached deposition testimony and his testimony before the deputy commissioner, likewise unimpeached, in which he detailed his continuing and deteriorating physical condition, symptoms, and inability to work as confirmed in the medical reports; and the deputy commissioner's...
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