Starbucks Coffee Co. v. Shy
| Decision Date | 04 December 2012 |
| Docket Number | Record No. 2557–11–4. |
| Citation | 734 S.E.2d 683,61 Va.App. 229 |
| Parties | STARBUCKS COFFEE COMPANY and American Zurich Insurance Company v. Kristin SHY. |
| Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
Andrew M. Alexander (Semmes, Bowen & Semmes, P.C., Vienna, on briefs), for appellants.
Craig A. Brown (Ashcraft & Gerel, LLP, Alexandria, on brief), for appellee.
Present: FELTON, C.J., and ALSTON and McCULLOUGH, JJ.
Starbucks Coffee Company (Starbucks) appeals from an order of the Workers' Compensation Commission (the commission) refusing to terminate an award of temporary total disability benefits to Kristin Shy (claimant). On appeal, Starbucks contends: 1) the commission erred in denying Starbucks' allegation that claimant returned to work on January 26, 2010; 2) the commission erred in denying Starbucks' allegation that claimant returned to work on November 26, 2010; and 3) the commission erred in denying Starbucks' allegation that claimant abandoned the labor force on January 4, 2011. Finding no error, we affirm.
On appeal from the commission, we view the evidence in the light most favorable to claimant, the party prevailing below. Tomes v. James City Fire, 39 Va.App. 424, 429–30, 573 S.E.2d 312, 315 (2002) (citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990)).
So viewed, the evidence showed that claimant suffered an upper back injury on December 8, 2009, during the course of her employment at Starbucks. The following day, claimant was placed on a workers' compensation leave of absence.
On January 26, 2010, claimant made an unsuccessful attempt to return to work for Starbucks at the store where she worked prior to her injury. During this unsuccessful attempt at returning to work, claimant performed what she described as “light duty work; mostly cashiering.” Despite performing only light-duty work over an interrupted six-week basis, claimant testified that her attempt to work a full shift caused her “extreme pain” and that she “could not move around or move [her] arms.”
In March 2010, after this failed attempt at returning to work, claimant was referred to Dr. Stephanie Clopp, who became claimant's treating physician and advised her to discontinue her work activity. Claimant worked her last day at Starbucks on March 8, 2010. On March 23, 2010, claimant was again placed on a workers' compensation leave of absence.
On April 19, 2010, claimant filed a claim for workers' compensation benefits and requested a hearing with the commission. In her claim, claimant alleged injuries to her right shoulder, neck, and back.
Prior to claimant's hearing before the commission, Starbucks provided claimant with an award agreement, providing for payment of temporary total disability benefits beginning on December 8, 2009. Claimant accepted the award agreement, and the parties submitted the agreement to the commission.
On July 27, 2010, the commission entered an award order, approving the award agreement, as well as entering an award of medical benefits pursuant to Code § 65.2–603. Following entry of the award, Starbucks neither sought review of the award nor argued that it should be modified or vacated. On August 26, 2010, the award order became final.
In November 2010, claimant applied for a job with the clothing retailer American Eagle. Claimant began working for American Eagle on November 26, 2010, and completed twelve hours of work over two shifts on nonconsecutive days before resigning in December 2010. Following her resignation from American Eagle, claimant then enrolled in Blue Ridge Community College as a full-time student on January 9, 2011.
On December 3, 2010, Starbucks filed an application for a hearing before the commission. Starbucks alleged that claimant's return to her pre-injury work at Starbucks on January 26, 2010, was a change in condition and sought the termination or suspension of claimant's outstanding award.
Starbucks filed a second application for a hearing before the commission on April 4, 2011, alleging that claimant's return to light-duty work with American Eagle on November 26, 2010, constituted a change in condition and warranted termination or suspension of claimant's outstanding award.
On May 18, 2011, Starbucks again filed an application for a hearing before the commission, claiming a change in condition based on claimant's January 26, 2010 return to light-duty work at Starbucks and requested the termination or suspension of claimant's award.
One week later, on May 25, 2011, Starbucks filed its final application for a hearing before the commission, alleging that claimant abandoned the labor force when she became a full-time college student on January 4, 2011. In addition, Starbucks alleged that “claimant did not timely report [her enrollment in college] to the commission,” as required by Code § 65.2–712.
On June 3, 2011, a deputy commissioner held a hearing on Starbucks' four consolidated applications for hearing. During the hearing, claimant testified that after returning to work for Starbucks on January 26, 2010, when she attempted to work a full shift, she suffered extreme pain and experienced difficulty moving. Because her work exacerbated her pain, claimant testified that she was unable to work a full week schedule. Claimant also testified that after she stopped working for Starbucks in March 2010, she was not offered employment or job search assistance by Starbucks.
Claimant also addressed her attempted return to work with American Eagle in November 2010. Claimant testified that when she applied to work for American Eagle, she was willing to work forty hours per week. Moreover,claimant testified that she quit working at American Eagle because she was not offered the hours she requested.
Additionally, claimant testified that she enrolled as a full-time student at Blue Ridge Community College in January 2011. Since enrolling at Blue Ridge, claimant acknowledged that she had not looked for work. However, claimant also testified that she had not refused any assistance from Starbucks in finding employment because of her student status.
After reviewing the evidence and testimony offered during the June 3, 2011 hearing, the deputy commissioner rejected each of Starbucks' four applications. First, the deputy commissioner found that by agreeing in June 2010 to entry of the award agreement with knowledge of claimant's brief and unsuccessful attempt to return to work in January 2010, Starbucks had waived and abandoned the allegations raised in its December 3, 2010 and May 18, 2011 applications.
Alternatively, the deputy commissioner concluded that Starbucks failed to carry its burden of proving the allegations raised in the December 3, 2010 and May 18, 2011 applications. Specifically, the deputy commissioner found that, upon return to work for Starbucks in January 2010, claimant's “attendance was sporadic at best, and [credited her] testimony that she continued to experience accident-related symptoms.”
Similarly, the deputy commissioner found that Starbucks failed to meet its burden to show a change in condition concerning claimant's November 26, 2010 return to work with American Eagle. The deputy commissioner noted that claimant's employment with American Eagle was too short to constitute a change in her condition.
The deputy commissioner also found Starbucks' May 25, 2011 application lacked merit, concluding that claimant had not withdrawn from the labor force when she enrolled in college on January 4, 2011. The deputy commissioner determined that claimant was not precluded from seeking employment by enrolling in college, that she had not refused any vocational assistance due to her status as a student, and that Starbucks had neither offered claimant a new job nor offered to help her find a job. Accordingly, the deputy commissioner concluded that Starbucks' allegations did not “establish a change in [claimant's] condition sufficient to suspend payments of compensation.”
Moreover, the deputy commissioner found unpersuasive Starbucks' assertion that claimant was required to notify the commission that she became a full-time college student. The deputy commissioner observed that Code § 65.2–712 only imposed a duty to disclose to the employer or its insurer, not the commission, a change in a claimant's status as a full-time student. More importantly, the deputy commissioner interpreted Code § 65.2–712 to place “a duty upon a claimant to disclose that he or she is no longer a full-time student for purposes of the dependency provisions of the Act, not to disclose that he or she has become a full-time student.”
Starbucks requested a review of the deputy commissioner's findings by the full commission on September 12, 2011. On November 17, 2011, the commission unanimously affirmed the deputy commissioner's June 16, 2011 decision.
The commission found that Starbucks did not appeal or seek to vacate the July 27, 2010 award order, and concluded that the award was thus final. Applying the principles of res judicata, the commission concluded that the award order barred Starbucks' December 3, 2010 and May 18, 2011 requests for review. In addition, the commission found that Starbucks was aware of claimant's January 2010 unsuccessful work attempt prior to execution of the award agreement, and, thus, “abandoned [its] claim to assert a change in condition prior to signing [the award agreement].”
The commission also concluded that Starbucks' May 25, 2011 application for hearing was meritless, finding that claimant's “enrollment in college [was] not a basis for termination of [the] award.” Significantly, the commission affirmed the deputy commissioner's finding that there was no evidence that claimant had withdrawn from the labor market upon her enrollment in college. Finally, the commission adopted the deputy...
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