WLR Foods, Inc. v. Cardosa, 0536-97-4

• Citation: 494 S.E.2d 147,26 Va.App. 220
• Decision Date: 23 December 1997
• Docket Number: No. 0536-97-4,0536-97-4
• Parties: WLR FOODS, INC. and Pacific Employers Insurance Company v. Villabaldo CARDOSA. Record
• Court: Court of Appeals of Virginia

Page 147

494 S.E.2d 147

26 Va.App. 220

WLR FOODS, INC. and Pacific Employers Insurance Company v. Villabaldo CARDOSA.

Record No. 0536-97-4.

Court of Appeals of Virginia,

Alexandria.

Dec. 23, 1997.

Cathleen P. Welsh (Wharton, Aldhizer & Weaver, P.L.C., on brief), Harrisonburg, for appellants.

No brief or argument for appellee.

Present: FITZPATRICK, C.J., ^* ELDER, J., and DUFF, Senior Judge.

FITZPATRICK, Chief Judge.

WLR Foods, Inc. and Pacific Employers Insurance Company (collectively employer) appeal the Workers' Compensation Commission's decision awarding benefits to Villabaldo Cardosa (claimant). Employer argues the commission erred in: (1) awarding benefits beyond the scope of claimant's request; (2) awarding benefits for a time-barred claim; and (3) finding that claimant's disability was causally related to his compensable injury. For the following reasons, we reverse the commission's decision.

I.

Villabaldo Cardosa is a fifty-three-year-old illiterate Mexican man who has worked in this country for at least eight years. He began processing chickens for employer on January 16, 1994. His job involved taking frozen chickens out of a box which contained twenty to twenty-five chickens, and placing the chickens on a cone. On April 15, 1994, as claimant was removing chickens from a box, the side of the box collapsed and he fell forward. Claimant broke his fall with his right arm and injured his right shoulder. After his injury, claimant worked for employer in a light duty position for an undetermined time before returning to regular duty. He last worked for employer November 30, 1994.

The evidence established that, on June 3, 1994, claimant saw Dr. G. Edward Chappell, Jr., an orthopedic surgeon. Dr. Chappell recorded that claimant had no prior problems with his shoulder but had experienced pain since the accident. He recommended occupational therapy, prescribed medication, and restricted all use of claimant's right arm at work. Dr. Chappell indicated that "part of his problem" is adhesive capsulitis, or "frozen shoulder." Dr. Chappell characterized adhesive capsulitis as "a disease of ordinary life unrelated to [claimant's] April, 1994 injury." On October 7, Dr. Chappell noted no change in claimant's symptoms but more range of motion. Dr. Chappell lifted the work restrictions. On November 7, Dr. Chappell noted continuing symptoms but stated he did not think surgery would help the adhesive capsulitis. Claimant did not return to Dr. Chappell. Nonetheless, on December 30, 1994, Dr. Chappell imposed a lifting restriction of a maximum of five pounds with no overhead use.

Without a referral from Dr. Chappell, claimant next sought medical treatment on May 23, 1995 from Dr. Robert Keeton, who declared claimant disabled "due to continuing shoulder problems." Dr. Keeton referred claimant to Dr. Creston Baumunk, another orthopedist. On July 5, Dr. Baumunk diagnosed claimant's condition as frozen shoulder probably secondary to impingement syndrome. On July 26, however, Dr. Baumunk indicated that the impingement syndrome was secondary to the frozen shoulder. On August 23, Dr. Baumunk observed that the long-term result of claimant's physical therapy "has been that he has regained some motion in the shoulder and this has been somewhat gratifying. At this point in time he continues, however, to have impingement-type syndrome." Dr. Baumunk offered three diagnoses: (1) right frozen shoulder, resolving slowly; (2) impingement syndrome, right shoulder; and (3) degenerative arthritis, right AC joint.

Through September and October 1995, claimant had several visits with Dr. Baumunk or his associate, Dr. Davis. After an office visit on November 1, Dr. Baumunk summarized the history:

Mr. Cardoso [sic] returned today, this time with an English interpreter. He claims that he fell on his shoulder at work and had no problem prior to ... this, and at that time he began to experience pain in the right shoulder area. He has been seen here for several months, [and] undergone four injections into the AC joint. He has had an arthrogram which shows no rotator cuff tear, and also has had subacromial injections. He has had physical therapy. He has also had multiple anti-inflammatories. He still has chronic pain and is unable to abduct above 90 degrees without marked pain in the shoulder area.

Dr. Baumunk concluded that, based on a diagnosis of "impingement syndrome with degenerative AC joint," and the failure of conservative therapy, surgery was recommended. Dr. Baumunk performed the surgery on November 9, 1995.

Claimant's condition improved after surgery, and by January 22, 1996, he had almost full range of motion of his shoulder. On March 18, Dr. Baumunk noted an improved range of motion despite some neck spasm, and he imposed a permanent restriction against overhead work. Dr. Baumunk anticipated a release at the next visit.

On June 3, 1996, without a referral, claimant saw Dr. Charles Hubbard, an orthopedist. Dr. Hubbard diagnosed a partial thickness tear of the rotator cuff and AC joint degeneration, and he assigned a 19% impairment of the upper right extremity with work restrictions of no lifting over ten pounds and no overhead work. He stated, in response to claimant's counsel's questions, that, "[a]ccording to the records, the present disability is due to his 4/1/94 [sic] injury." Dr. Hubbard clarified, in response to employer's counsel, that he did not have access to Dr. Chappell's records and that arthritis of the AC joint and a subacromial bone spur contributed to claimant's impingement syndrome.

Claimant first filed a claim for benefits on March 3, 1995. At an August 23, 1995 hearing, Deputy Commissioner Herring found that claimant had sustained a compensable injury by accident and that employer would "be responsible for medical care and treatment proximately related to the right shoulder contusion." However, based on Dr. Chappell's statements, the deputy commissioner also found that the employer's responsibility "shall not include any treatment for adhesive capsulitis." This opinion was not appealed and became final.

On February 14, 1996, claimant, by counsel, filed a change-in-condition application for benefits beginning February 1, 1996. Claimant never amended the application, either in writing or at the hearing, to expand the dates for coverage. At the June 5, 1996 hearing, claimant testified through an interpreter about his pre-injury and post-injury work. Claimant also described his efforts to market his remaining work capacity, which included applying for a job with employer on February 1, visiting an unspecified number of jobs in February, and inquiring at four or five plants between February and June.

Deputy Commissioner Mercer denied claimant's change-in-condition application, finding that claimant "does not suffer from a rotator cuff tear, and ... that the diagnosis of frozen shoulder is not related to the accident." He also found that claimant failed to prove disability from his pre-injury work, reasonable efforts to market his residual work capacity, and a causal relationship between his disability and his compensable injury. Claimant appealed to the full commission.

The commission reversed and awarded claimant temporary total disability benefits for the period October 25, 1995 through December 13, 1995, and from June 3, 1996 until circumstances require a modification. The commission found that Deputy Commissioner Herring's unappealed decision was res judicata, and employer was not responsible for treatment of claimant's adhesive capsulitis (frozen shoulder). However, "the record clearly reflects that the claimant suffers from more than one condition. In addition to adhesive capsulitis, the claimant has also been diagnosed with impingement syndrome caused by the fall at work." Although "the frozen shoulder resolved over time, the impingement syndrome worsened, necessitating surgery on November 9, 1995." The commission found that the two conditions are separate diagnoses and that "[t]reatment of and disability caused by the impingement syndrome are not barred by res judicata."

The commission found that Dr. Baumunk assessed claimant as totally disabled from October 25 to December 13, 1995, a time period predating that requested by claimant or addressed at the hearing. The commission further found that, "[b]ased on the uncontradicted opinion of Dr. Hubbard ... the claimant was partially disabled and unable to perform his regular job as of June 3, 1996." The commission evaluated claimant's efforts to market his residual capacity and concluded that "for a non-English-speaking, illiterate manual laborer, age 53, with a ten pound lifting restriction, and no rehabilitation assistance from the employer who has continually denied this claim, the marketing is reasonable."

II.

Employer first argues that the commission erred in awarding claimant benefits for October 25 to December 13, 1995, because claimant requested wage benefits only for the time period beginning February 1, 1996. Employer contends that the commission is not empowered to award benefits for time periods not requested in the application for a hearing or at the hearing itself and which the employer does not know it will be required to defend. We agree.

"Due process is flexible and calls for such procedural protections as the particular situation demands." Duncan v. ABF Freight System, Inc., 20 Va.App. 418, 422, 457 S.E.2d 424, 426 (1995) (citing Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976)). It is well settled that

[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Crystal Oil Co. v. Dotson, 12 Va.App. 1014, 1018, 408 S.E.2d 252, 254 (1991) (citing Mullane v. Central...