Wells v. Goodyear Tire & Rubber Co.

• Decision Date: 17 December 2013
• Docket Number: Record No. 0932-13-3
• Citation: Wells v. Goodyear Tire & Rubber Co., Record No. 0932-13-3 (Va. App. Dec 17, 2013)
• Court: Virginia Court of Appeals
• Parties: JAMES A. WELLS, JR. v. GOODYEAR TIRE & RUBBER COMPANY AND LIBERTY MUTAL INSURANCE

JAMES A. WELLS, JR. v. GOODYEAR TIRE & RUBBER COMPANY AND LIBERTY MUTAL INSURANCE

Record No. 0932-13-3

COURT OF APPEALS OF VIRGINIA

DECEMBER 17, 2013

UNPUBLISHED

Present: Judges Petty, McCullough and Chafin

Argued at Salem, Virginia

MEMORANDUM OPINION^* BY

JUDGE TERESA M. CHAFIN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Steven G. Bass (Carter Craig, Attorneys at Law, on brief), for appellant.

B. Patrick Agnew (Agnew & Rosenberger PLLC, on brief), for appellees.

James A. Wells, Jr. ("Wells") appeals a decision of the Workers' Compensation Commission ("commission") denying his claim for temporary partial disability payments. Wells presents two assignments of error on appeal. First, he contends that the commission erred in finding that the work restriction imposed by his treating physician was limited only to his work with Goodyear Tire & Rubber Company ("Goodyear") and in holding that Wells had failed to prove entitlement to temporary partial disability benefits. Wells also contends that the commission erred in holding that Goodyear was not estopped in asserting the defense of failure to market residual work capacity after depriving Wells of an open award by unilaterally changing the course of conduct between the parties. For the reasons that follow, we affirm the decision of the commission.

BACKGROUND

"On appeal from a decision of the Workers' Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below." Artis v. Ottenberg's Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).

So viewed, the evidence proved that on February 5, 2005, while employed by Goodyear, Wells suffered an injury to his left shoulder in a work accident compensable under the Virginia Workers' Compensation Act ("the Act"), Code §§ 65.2-100 through 65.2-1310. Beginning on November 7, 2005, Wells received temporary partial compensation benefits pursuant to several separate supplemental awards that were calculated and adjusted on a monthly or quarterly basis. Wells testified in his deposition that he sent his pay-stubs to Goodyear's insurance carrier, Liberty Mutual. Wells then received a check from Liberty Mutual followed by agreement forms, which he would sign and mail back to Liberty Mutual. In February 2011, Wells was notified that Liberty Mutual would no longer pay Wells' compensation benefits. The last award was entered on April 1, 2011 for the period of January 17, 2011 through January 30, 2011.

On November 22, 2005, Dr. Joseph Campbell, Wells' treating orthopedist, released Wells to light-duty work forty-two hours or less each week with permanent restrictions prohibiting him from repetitively lifting over forty pounds and overhead work. Prior to his injury, Wells performed work that involved driving a tow motor and lifting by hand truck tires weighing as much as one hundred pounds and airplane tires weighing as much as eighty pounds. Wells is sixty years old and has worked at Goodyear for thirty-six years. He has been a tire builder for twenty of those years.

Wells returned to light-duty work for Goodyear in the fall of 2005 working forty-two hours each week. Prior to his injury, Wells worked an average of sixty to seventy hours perweek to take advantage of overtime work. ¹ Since his return to light-duty work, Wells performs his pre-injury job and self-limits his manner of work, so as to not exceed his physical restrictions. Wells has worked no overtime hours for Goodyear since his return to work, resulting in a decrease in pay.² Wells admits that he made no efforts to conduct a job search outside of his pre-injury position at Goodyear.

On December 4, 2009, Dr. Campbell further indicated, "Mr. Wells is to do regular work activities less than 42 hours per week. I believe that working over 42 hours a week would significantly increase the chance that he would re-injure his rotator cuff tear and may lead to overuse syndrome in his elbow and exacerbation of this also." Similarly, on August 22, 2011, Dr. Campbell opined that Wells was limited to "[r]egular duty 42 hours/week." At the hearing before the deputy commissioner, Wells testified that he could not work more hours because his job requires him to drive a tow motor on which "you're constantly turning and lifting . . . [t]ruck tires and airplane tires."

Wells filed a claim for benefits on August 30, 2011, alleging entitlement to temporary partial disability benefits beginning on January 31, 2011 through the present. A deputy commissioner denied Wells' claim for temporary partial disability benefits. The deputy commissioner concluded Wells was not entitled to a presumption of ongoing disability, and thus, Goodyear was not estopped from raising the defense that Wells is no longer entitled to temporary partial disability benefits. The deputy commissioner also found that the work restriction imposed by Wells' treating physician was limited only to his work with Goodyear. Therefore, the deputycommissioner found that Wells had a duty to market his remaining work capacity by attempting to find a light-duty job within his restrictions to supplement his income at Goodyear.

Wells sought review of the deputy commissioner's decision by the commission. The commission affirmed the deputy commissioner's decision.

ANALYSIS

A. Duty to Market Residual Capacity

On appeal to this Court, Wells contends that the commission erred in finding that the work restriction imposed by his treating physician was limited only to his work with Goodyear and in holding that Wells had a duty to market his residual capacity.

"Factual findings of the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). "If there is evidence, or reasonable inferences can be drawn from the evidence, to support the [c]ommission's findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).

Hoy Constr., Inc. v. Flenner, 32 Va. App. 357, 361, 528 S.E.2d 148, 150 (2000). "In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

There is sufficient evidence in the record to support the commission's finding that Wells' forty-two-hour work restriction from Dr. Campbell did not apply to all types of work. There is no evidence in the record that the forty-two-hour restriction applied to work other than Wells' full-duty job at Goodyear, at which he was required to perform activities which were of concern to Dr. Campbell. To the contrary, the references to the forty-two-hour restriction which appear in Dr. Campbell's notes consistently link the restriction to Wells' regular job at Goodyear.Nothing in Dr. Campbell's records suggests that Wells could not work additional hours at a job which did not involve the strenuous duties of his job at Goodyear.

Because we find that the forty-two-hour restriction did not apply to all types of work, Wells had residual work capacity that he was required to market. "A partially disabled employee 'who seeks compensation of the wage differential between his new and his old jobs, has the burden of proving that he has made a reasonable effort to market his full remaining work capacity.'" Va. Natural Gas, Inc. v. Clinton Tennessee, 50 Va. App. 270, 282, 649 S.E.2d 206, 212 (2007) (quoting Nat'l Linen Serv. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 33 (1989)). "In determining whether a claimant has made a reasonable effort to market his remaining work capacity, we view the evidence in the light most favorable to . . . the prevailing party before the commission." Nat'l Linen Serv., 8 Va. App. at 270, 380 S.E.2d at 32.

There are no fixed guidelines for determining what constitutes a "reasonable effort" by an employee to market residual work capacity. An employee must "exercise reasonable diligence in seeking employment" and the reasonableness of an employee's effort will be determined on a case by case basis, taking into account "all of the facts and surrounding circumstances."

Ford Motor Co. v. Favinger, 275 Va. 83, 89-90, 654 S.E.2d 575, 579 (2008) (quoting Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987)). However, some of the criteria that should be considered include:

(1) the nature and extent of [the] employee's disability; (2) the employee's training, age, experience, and education; (3) the nature and extent of [the] employee's job search; (4) the employee's intent in conducting his job search; (5) the availability of jobs in the area suitable for the employee, considering his disability; and (6) any other matter affecting [the] employee's capacity to find suitable employment.

Nat'l Linen Serv., 8 Va. App. at 272, 380 S.E.2d at 34 (footnotes omitted). "In sum, an employee 'must present some evidence that he [has] engaged in a good faith effort to obtain work within the tolerance of his physical condition and has failed to find a job, either due to hisinjury or because no such work was available in the community.'" Favinger, 275 Va. at 90, 654 S.E.2d at 579 (quoting Nat'l Linen Serv., 8 Va. App. at 271, 380 S.E.2d at 34).

We are guided by the Supreme Court of Virginia's decision in Favinger, 275 Va. 83, 654 S.E.2d 575. There, Favinger worked full-time in a body shop for employer, and also had the opportunity to work overtime hours. Id. at 86, 654 S.E.2d at 576. After his injury, Favinger returned to a light-duty position with the same employer, earning the same wage as he earned pre-injury. Id. However, in this light-duty position,...