White Elec. Co., Inc. v. Bak

• Decision Date: 12 March 1996
• Docket Number: No. 1279-95-1,1279-95-1
• Citation: 22 Va.App. 17,467 S.E.2d 827
• Parties: WHITE ELECTRIC COMPANY, INC. and State Farm General Insurance Company. v. Charles Joseph BAK, Jr. Record
• Court: Virginia Court of Appeals

Page 827

467 S.E.2d 827

22 Va.App. 17

WHITE ELECTRIC COMPANY, INC. and State Farm General Insurance Company. v. Charles Joseph BAK, Jr.

Record No. 1279-95-1.

Court of Appeals of Virginia,

Norfolk.

March 12, 1996.

William J.G. Barnes, Newport News (James Hall Revere, III; Waddell & Barnes, P.C., on briefs), for appellants.

Stephen J. Davis, Virginia Beach (Shuttleworth, Ruloff & Giordano, P.C., on brief), for appellee.

Present: BAKER, BRAY and OVERTON, JJ.

BAKER, Judge.

White Electric Company, Inc. and State Farm General Insurance Company (jointly referred to herein as employer) appeal from a decision of the Workers' Compensation Commission (commission) that rejected employer's motion to deny further compensation benefits to Charles Joseph Bak, Jr. (claimant) on the ground that claimant settled his third-party action against Paul Ferranti (Ferranti) without notifying or obtaining employer's agreement to the terms of the settlement. In its opinion, the commission noted that the parties were familiar with the facts and that it would repeat only those necessary to explain its opinion. The facts stated in this opinion are facts found by the commission. Although employer submits four questions for our consideration, the determinative issue is whether the facts are sufficient to support the commission's decision that claimant's settlement did not deprive employer of subrogation rights under the Workers' Compensation Act (Act). If claimant's actions operated to deprive employer of its rights, claimant would be barred from obtaining further compensation benefits.

On appeal, we must view the facts in the light most favorable to the party prevailing before the commission. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). The commission's opinion states that on January 23, 1990, claimant was injured in a motor vehicle accident with Lisa Lannigan (Lannigan). Employer denied claimant's contention that his injuries were job-related. A hearing was held before Deputy Commissioner Arrighi (Arrighi), who found that claimant had suffered a temporomandibular joint (TMJ) injury which was job-related and that employer was responsible for compensation benefits.

When employer failed to accept responsibility for the injuries, claimant petitioned the commission to require employer to comply with Arrighi's finding. On August 24, 1993, another hearing was held, this one before Deputy Commissioner Phillips (Phillips). Phillips also ruled that the TMJ injury was job-related and compensable. In that hearing, Dr. Michael J. Kelley, an oral surgeon, was declared to be the treating physician for the TMJ injury. Employer denied that claimant's dental problems were job-related and requested a review by the full commission.

While the foregoing described proceedings were pending, on January 23, 1991 claimant was involved in a motor vehicle accident with Ferranti. The parties stipulated that the injuries received in the Ferranti accident were not job-related; however, in a third-party action filed against Ferranti, in his motion for judgment, claimant alleged that as a result of Ferranti's negligence, claimant suffered aggravation of his pre-existing TMJ condition. In the course of that suit, claimant responded to interrogatories propounded to him, swearing that he had presently incurred or in the future would incur medical expenses relating to the TMJ injury in the sum of $17,098. ¹ Without notifying employer--or seeking its agreement--claimant settled his suit against Ferranti for $8,000.

On October 25, 1994, on employer's application, a further hearing was held, this time before Deputy Commissioner Lahne (Lahne). Employer contended that any condition from which claimant suffered was caused by his failure to cooperate with medical treatment and that claimant was barred from receiving further compensation benefits because he settled his suit against Ferranti without employer's knowledge or agreement. In support of that contention, employer asserted that the medical evidence showed that the injuries claimant incurred in the January 23, 1991 accident aggravated claimant's TMJ condition, and that the $17,908 in medical expenses claimed by claimant resulted from this aggravation. Lahne stated that the determinative issues were as follows:

Are the claimant's dental problems as outlined by Dr. Hooper causally related to the 1/23/90 work accident and its aftermath?

and

Is the claimant barred from receipt of further compensation benefits by virtue of his settlement of the personal injury claim arising from his 1/23/91 accident?

Lahne found that claimant failed to meet his burden to prove that his dental problems were job-related. Stating that this case was controlled by Barnes v. Wise Fashions, 16 Va.App. 108, 428 S.E.2d 301 (1993), and Green v. Warwick Plumbing & Heating Corp., 5 Va.App. 409, 364 S.E.2d 4, appeal denied, 371 S.E.2d 7 (1988), Lahne also found that claimant was barred from receiving further benefits because of his settlement of the third-party claim against Ferranti. Claimant appealed Lahne's opinion to the full commission.

The commission found that, although the treating physician, Dr. Kelley, initially found that claimant had "reaggravated his old problem," later reports disclosed that no further treatment was necessary after March 15, 1991. The reports also failed to state what, if any, consequence continued beyond that date.

The commission further noted that claimant was examined by Dr. Stanley H. Legum, a dentist, Dr. William S. Dodson, an oral surgeon, and Dr. Christopher A. Hooper, a dentist, and none related claimant's condition to his January 23, 1991 accident. Specifically, Dr. Dodson reported:

It is possible to state that the second accident that occurred on 1/23/91 had no influence on...