Cris R. Anderson v. Cris R. Anderson, d/b/a Anderson Plumbing and Firstcomp Insurance Company , 65 Va. App. 354 ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, Russell and AtLee
PUBLISHED
Argued at Richmond, Virginia
CRIS R. ANDERSON
OPINION BY
v. Record No. 0697-15-2 JUDGE WESLEY G. RUSSELL, JR.
NOVEMBER 10, 2015
CRIS R. ANDERSON,
d/b/a ANDERSON PLUMBING AND
FIRSTCOMP INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Cris R. Anderson, pro se.
Megan B. Caramore (Brian L. Sykes; Vandeventer Black LLP, on
brief), for appellees.
Cris R. Anderson, claimant, appeals a decision of the Workers’ Compensation
Commission denying him benefits. On appeal, claimant contends a majority of the Commission
erred in finding: 1) claimant unjustifiably refused to cooperate with vocational rehabilitation
efforts; and 2) the March 6, 2013 injury from a fall was not a compensable consequence of the
original injury suffered on August 18, 2011.1 For the reasons that follow, we affirm the
Commission’s ruling that claimant unjustifiably refused to cooperate with vocational
1
In a third assignment of error, appellant contends, “[t]he [d]eputy [c]ommissioner erred
by not considering any medical evidence of the record and awarding only medical benefit [sic]
for the compensable consequence injury.” Code § 17.1-405 gives this Court jurisdiction over
“[a]ny final decision of the Virginia Workers’ Compensation Commission.” Thus, our review
extends only to the Commission’s ruling, not the opinion reached by the deputy commissioner.
See Tyco Elecs. & Ins. Co. of the State of Pa. v. VanPelt, 62 Va. App. 160, 178, 743 S.E.2d 293,
302 (2013) (“We do not review the opinion of a deputy commissioner.”). Therefore, we do not
address this assignment of error on appeal.
rehabilitation efforts, but reverse the Commission’s conclusion that injuries suffered in a fall
under these circumstances never can constitute a compensable consequence.
BACKGROUND
Claimant owned his own plumbing business. On August 18, 2011, claimant suffered a
compensable injury to his right shoulder. The insurance carrier (hereinafter “employer”)
accepted the injury as compensable. The Commission awarded claimant lifetime medical
benefits and temporary total disability beginning on November 10, 2011.
For his shoulder injury, claimant was treated by Dr. Kenneth Zaslav, an orthopaedist.
Dr. Zaslav treated claimant for a number of years after the accident, concluding that, as of June
17, 2013, claimant had achieved “MMI” or maximum medical improvement. Dr. Zaslav
concluded that claimant was “unable to return to his pre-injury work level.” Dr. Zaslav did
release him to light duty, providing restrictions for future employment, including no “lifting,
carrying, pushing, [or] pulling of any kind” and specifically stating that claimant could not lift
more than five pounds with his left hand. Having set forth the restrictions, Dr. Zaslav stated his
hope that the workers’ compensation process would result in “job training” so claimant could
“find . . . a new job.”
While he was still under Dr. Zaslav’s care for his shoulder injury, claimant, on March 6,
2013, slipped and fell on snow-covered deck steps at his residence and claimed that he injured
his lower back and left buttock as a result. Claimant testified before the deputy commissioner
that he believed he had an appointment with Dr. Zaslav the day of the fall for treatment related to
his August 18, 2011 shoulder injury and that the fall occurred as he was walking from his house
to his car so that he could drive to the appointment. He thought he had a 1:20 p.m. appointment,
but was unaware that his wife had told the doctor’s office earlier that he would not be coming in
that day. He testified that he called his doctor’s office and left a message that he was on his way,
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yet the office notes from the doctor’s office do not reflect that claimant called. They do,
however, show that his wife called to cancel the appointment because claimant was not feeling
well that day and was concerned about travel due to weather conditions. The office note reads:
“spoke with wife, patient not feeling well and did not want to drive in the weather . . . will call to
[reschedule].” Claimant filed a change-in-condition application on May 29, 2013, seeking
medical benefits for the injuries that he claims to have suffered in the fall.
Jennifer Jurlando, a vocational case manager at GenX Services, contacted claimant on
August 8, 2013, to help him secure employment within his medical restrictions. When she first
met with him, he “was resistant to provide me with any information about what he might like to
do or be able to do.” Ms. Jurlando found three potential positions for claimant, including one
full time and one part time position at Lowe’s. On August 20, she spoke with Michael Saltisiak,
the human resource manager at Lowe’s, and he indicated that he was eager to speak to claimant
about a job. She discussed claimant’s work restrictions with Mr. Saltisiak, and he assured her
that he was willing to work with claimant within those restrictions. Ms. Jurlando asked claimant
to apply directly to Mr. Saltisiak. She then asked claimant to meet her at Lowe’s on August 23.
Claimant called her on August 22 and cancelled the appointment. She rescheduled the
appointment for August 27. Claimant called Ms. Jurlando while she was on her way to that
meeting and cancelled. She rescheduled the meeting for September 4. On September 3,
claimant cancelled the meeting. He also told Ms. Jurlando not to schedule any more
appointments with Lowe’s and not to schedule any more vocational appointments or interviews.
Ms. Jurlando testified that “[claimant] felt unwilling” to cooperate as of that date.
Claimant explained to the deputy commissioner that the reason he did not want to meet
Ms. Jurlando at Lowe’s was that the medications he was taking made him feel “lousy and
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drowsy.” That is also why he asked Ms. Jurlando to stop making appointments for him,
specifically stating such efforts were “going to be a waste of time.”
Michael Saltisiak testified by deposition that he oversees applications for employment at
the store. He is responsible for conducting initial interviews of potential employees. He
indicated that Lowe’s had a job opening in plumbing and that claimant had been scheduled for
two initial appointments but did not show up for the appointments. Claimant eventually arrived
at an unscheduled time. Claimant introduced himself and apologized for missing the other
meetings. Claimant explained that he was “disabled” and would not be able to perform any job
Lowe’s had available. Mr. Saltisiak told claimant Lowe’s had positions available that he thought
claimant could perform. He testified that claimant showed no interest in pursuing those
positions.
On September 5, 2013, employer filed an application for termination and/or suspension
of lost wage benefits, alleging that claimant failed to cooperate with reasonable vocational
rehabilitation efforts.
After conducting a hearing, the deputy commissioner found claimant unjustifiably
refused to cooperate with vocational rehabilitation efforts. The deputy commissioner observed
that claimant “did not present any credible medical evidence that he was unable to work . . . at
Lowe’s in a modified position . . . .” In granting employer’s application to suspend temporary
disability benefits, the deputy commissioner wrote, “It is the commission’s opinion . . . that the
claimant essentially substituted his opinion for the physicians in this case and unilaterally
stopped working with the vocational case manager, without even trying to meet with [Lowe’s] at
one of the scheduled meetings.”
Regarding the March 6, 2013 fall, the deputy commissioner, relying on Immer v.
Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967), concluded that any injuries claimant suffered in
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the fall were compensable consequences of the original injury, and therefore, awarded claimant
medical benefits related to the fall.
Both claimant and employer sought review by the full Commission. The Commission
affirmed the deputy commissioner’s finding that claimant unjustifiably had refused vocational
rehabilitation. As a result, the Commission affirmed the deputy commissioner’s suspension of
claimant’s wage benefits.
A divided Commission, applying the rule from the Commission’s decision in Mullins v.
Abingdon Wholesale Plumbing & Electric, VWC File No. 186-70-45 (July 22, 1999), reversed
the deputy commissioner’s finding that claimant’s fall was a compensable consequence of his
original injury.2 Specifically, a majority of the Commission concluded that the rule of Mullins
(“‘[A]n employee is not enroute [sic] [to a doctor’s appointment] for purposes of [an injury being
a compensable consequence] until he is travelling on the public highways.’”) precluded any
injuries claimant suffered in the March 6, 2013 fall from being a compensable consequence of
the August 18, 2011 injury. Accordingly, the Commission reversed the deputy commissioner’s
decision and denied claimant’s claim for medical benefits related to the March 6, 2013 fall.
Claimant timely noted an appeal to this Court.
ANALYSIS
“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
2
On the issue of compensable consequences, each commissioner issued an opinion.
Although they explained the details differently, two commissioners agreed that Mullins stood for
the proposition that “‘an employee is not enroute [sic] [to a doctor’s appointment] for purposes
of [an injury being a compensable consequence] until he is travelling on the public
highways. . . ,’” and therefore, the injuries suffered in the fall could not be a compensable
consequence of the original injury. The third commissioner dissented, finding that Mullins was
incorrectly decided and that any injuries suffered in the fall constituted a compensable
consequence of the initial injury.
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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). Furthermore, “we are bound by the [C]ommission’s
findings of fact as long as ‘there was credible evidence presented such that a reasonable mind
could conclude that the fact in issue was proved,’ even if there is evidence in the record that
would support a contrary finding.” Id. at 83-84, 608 S.E.2d at 517 (quoting Westmoreland Coal
Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988)). See also Code § 65.2-706.
Such deference to the Commission does not extend to questions of law, which we review de
novo. Rusty’s Welding Service, Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255, 259
(1999) (en banc) (citation omitted).
Unjustified Refusal to Participate in Vocational Rehabilitation
After an award of benefits, an employer owes a duty to an injured employee to provide
“reasonable and necessary vocational rehabilitation services.” Code § 65.2-603(A)(3). Such
services “include vocational evaluation, counseling, job coaching, job development, job
placement, on-the-job training, education, and retraining.” Id. Once an employer provides such
services, an unjustified refusal of the employee to accept the services “shall bar the employee
from further compensation until such refusal ceases . . . .” Code § 65.2-603(B). See also
Newport News Shipbuilding & Dry Dock Co. v. Lawrence, 38 Va. App. 656, 662, 568 S.E.2d
374, 376 (2002) (holding that “an employee’s unjustified refusal to cooperate with placement
efforts of the employer is tantamount to an unjustified refusal of selective employment” (internal
quotation marks and citation omitted)). Whether the employee unjustifiably has refused to
cooperate with vocational rehabilitation services is a question of fact to be determined from the
totality of the evidence. Id. at 662, 568 S.E.2d at 377; UPS v. Godwin, 14 Va. App. 764, 767,
418 S.E.2d 910, 912 (1992). Accordingly, the Commission’s finding that claimant unjustifiably
refused to cooperate with vocational rehabilitation is conclusive and binding upon us if credible
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evidence exists in the record to support the finding. Lawrence, 38 Va. App. at 662, 568 S.E.2d at
377. Evidence to the contrary in the record “is of no consequence if there is credible evidence to
support the Commission’s findings.” Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341
S.E.2d 824, 826 (1986).
Although claimant maintains that his work accident left him unable to perform any job,
there is evidence in the record to the contrary. Dr. Zaslav, while concluding that claimant could
not return to his pre-injury work, clearly contemplated that claimant could work, going so far as
to express his hope that the workers’ compensation process would result in “job training” so
claimant could “find . . . a new job.” The evidence established that the employer procured job
interviews for claimant for positions within his medical restrictions and that claimant refused to
attend the interviews. Evidence below supports a conclusion that claimant instructed employer’s
vocational rehabilitation specialist not to schedule further interviews for him and that he
characterized such efforts as a “waste of time.” Thus, there is evidence in the record to support
the Commission’s determination that claimant unjustifiably refused vocational rehabilitation
services. Accordingly, we affirm this portion of the Commission’s decision.
Doctrine of Compensable Consequences
The doctrine of compensable consequences allows a claimant to recover for injuries that
result from an industrial accident even if those injuries do not manifest during the initial
industrial accident, but rather, develop at some point in the future. Berglund Chevrolet, Inc. v.
Landrum, 43 Va. App. 742, 751, 601 S.E.2d 693, 697 (2004). Citing to Professor Larson’s
treatise on workers’ compensation, we previously have summarized the doctrine, noting that
“‘[w]hen the primary injury is shown to have arisen out of and in
the course of employment, every natural consequence that flows
from the injury likewise arises out of the employment, unless it is
the result of an independent intervening cause attributable to
claimant’s own intentional conduct.’” Morris v. Badger
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Powhatan/Figgie, Int’l., Inc., 3 Va. App. 276, 283, 348 S.E.2d 876,
879 (1986) (quoting A. Larson, The Law of Workmen’s
Compensation §§ 13 and 81.30).
Haftsavar v. All American Carpet & Rugs, 59 Va. App. 593, 599-600, 721 S.E.2d 804, 808
(2012). When the doctrine applies, “ʻthe second injury is treated as if it occurred in the course of
and arising out of the employee’s employment.’” Farmington Country Club, Inc. v. Marshall, 47
Va. App. 15, 23, 622 S.E.2d 233, 237 (2005) (quoting Leonard v. Arnold, 218 Va. 210, 214, 237
S.E.2d 97, 100 (1977)).
The Virginia Supreme Court “first addressed the compensable consequences idea in
Immer and Co. v. Brosnahan, 207 Va. 720, 152 S.E.2d 254 (1967).” Amoco Foam Products Co.
v. Johnson, 257 Va. 29, 32, 510 S.E.2d 443, 444 (1999). In Immer, the claimant was injured
when he passed out and then struck a tree while driving to a doctor’s appointment where he was
to receive treatment for injuries he had suffered in a compensable industrial accident. 207 Va. at
721, 152 S.E.2d at 255. The Supreme Court found that the injuries suffered in the automobile
accident were compensable, concluding that claimant’s travel to his authorized physician for
treatment was a duty he was “obligated to perform,” and therefore, “[t]he hazards of highway
travel became necessary incidents of his employment. When those hazards united with his
preexisting vascular condition to cause the accident, there was established a causal connection
between his employment and his additional injuries, and he was entitled to compensation.” Id. at
728, 152 S.E.2d at 259.
In reaching this conclusion, the Supreme Court relied heavily on Professor Larson’s
treatise on workers’ compensation. In adopting the doctrine of compensable consequences as it
relates to injuries sustained during travel to the authorized treating physician, the Supreme Court
quoted the treatise at length, noting that
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Professor Larson, in his comprehensive and illuminating treatise
on Workmen’s Compensation Law, 1964 Ed., Vol. 1, § 13.13, p.
192.77, states:
“When an employee suffers additional injuries
because of an accident in the course of a journey to
a doctor’s office occasioned by a compensable
injury, the additional injuries are generally held
compensable. If the journey takes place
immediately after the first injury occurs, the chain
of causation is most readily visible, as when an
employee was being rushed to a hospital following
a compensable injury and sustained further injury
when the ambulance was involved in a collision.
But, quite apart from the element of immediacy, a
fall or automobile accident during a trip to a
doctor’s office has usually been considered
sufficiently causally related to the employment by
the mere fact that a work-connected injury was the
cause of the journey, without any necessity for
showing that the first injury in some way
contributed to the fall or accident . . . .”
Id. at 722-23, 152 S.E.2d at 256 (emphasis added). Thus, although the Immer Court focused on
the highway risks associated with the automobile accident that caused the second injury in that
case, it stated a broader rule. Specifically, the Supreme Court expressly recognized that both
automobile accidents and falls while travelling to seek authorized treatment for injuries suffered
in an industrial accident could result in injuries that constituted compensable consequences.3
In the years since Immer, the Commission has been called upon to apply its holding on
multiple occasions. In 1999, the Commission decided Mullins. Focusing on the portion of
Immer that detailed the “hazards of highway travel” and on cases decided under the “going and
coming rule,” the Commission found that, under Immer, “an employee is not enroute [sic] [to a
doctor’s appointment] for purposes of [an injury being a compensable consequence] until he is
3
It is hard to imagine one falling while travelling in an automobile on a public highway.
Thus, by including “fall” in addition to “automobile accident,” the doctrine described by the
Immer Court is broader than just automobile accidents.
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travelling on the public highways.” The Commission’s opinion in Mullins makes no reference to
the portion of the Immer opinion that provides that injuries suffered in a fall while travelling to a
doctor’s appointment can be a compensable consequence.4
Turning to the instant case, a majority of the Commission faithfully applied Commission
precedent to the facts and determined that, under the rule the Commission announced in Mullins,
claimant could not recover for injuries suffered in the March 6, 2013 fall. If Mullins correctly
had applied the rule and reasoning of Immer, this unquestionably would be the correct result;
however, we find that the Commission’s decision in Mullins was in error.5
Given that Immer itself expressly recognizes that injuries occasioned by both falls and
automobile accidents while travelling to an authorized treating physician can be compensable
consequences, the Commission erred in Mullins in adopting a blanket rule that requires the
claimant to have entered his vehicle.6 Because the Commission resolved this case by applying
4
We note that, although they are often persuasive, “decisions [of the Commission] are
not binding authority on this Court . . . .” UPS v. Prince, 63 Va. App. 702, 708 n.2, 762 S.E.2d
800, 803 n.2 (2014).
5
Although the Supreme Court’s reference to falls during travel to a doctor’s office is
arguably dicta given the particular facts of Immer, the Supreme Court chose to include the
language regarding falls. Accordingly, we adopt it here.
6
The Commission’s desire to create a bright-line rule is understandable. Doing so
provides clarity to the public and the bar, allowing them to predict whether pursuing a claim will
be a fruitful exercise. The language of Immer, however, precludes the line from being drawn
where the Commission drew it. The result is that the determination of whether a second injury is
a “natural consequence” that flowed from the initial injury by accident will be a fact-specific
question, the resolution of which will often turn on whether a particular causal chain simply is
“too remote.” We recognize that this can be a subjective exercise. For example, in Amoco
Foam Products, the Supreme Court found the causal chain too remote for an injury that was
caused by an injury that, was itself, a compensable consequence of the injury suffered in the
industrial accident. 257 Va. at 33, 510 S.E.2d at 445.
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the Mullins rule, it committed error, and therefore, we reverse the Commission’s decision
regarding compensable consequences in this case.7
Our conclusion that the Commission’s application of the Mullins rule was error does not
inexorably lead to the conclusion that the injuries claimant claims to have suffered in the March
6, 2013 fall represent a compensable consequence of the initial industrial accident. Rather, it
requires that the claim be reviewed under the appropriate legal standard.
We have recited that standard many times. An injury will be considered a compensable
consequence if it can be said to be a “natural consequence that flows from the [initial,
compensable] injury . . . unless it is the result of an independent intervening cause attributable to
claimant’s own intentional conduct.” Farmington Country Club, 47 Va. App. at 22-23, 622
S.E.2d at 237 (internal quotation marks and citations omitted); Haftsavar, 59 Va. App. at
599-600, 721 S.E.2d at 808 (same); Imperial Trash Serv. v. Dotson, 18 Va. App. 600, 606-07,
445 S.E.2d 716, 720 (1994) (same); Morris, 3 Va. App. at 283, 348 S.E.2d at 879 (same). See
also 1 Lex K. Larson, Larsonʼs Workersʼ Compensation Law § 10.01 (Matthew Bender, rev. ed.
2015) (“But when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of ‘direct and natural results,’ and of claimant’s own conduct
as an independent intervening cause.”). Finally, for situations like this, the fall and resultant
injuries must have occurred “during a trip to a doctor’s office,” Immer, 207 Va. at 723, 152
7
This is not to say that all injuries suffered in a fall on the day of a doctor’s appointment
constitute compensable consequences. The injuries still must occur during travel to a doctor’s
appointment. We simply recognize that travel can begin and, in some circumstances, even end
without facing the “hazards of the highway,” and therefore, the Commission erred in concluding
that there never could be such travel without entering a vehicle.
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S.E.2d at 256, as opposed to during everyday activities that are independent of or merely
preparatory to the journey.
As noted above, this is a fact-specific inquiry. For example, in this case, it is germane to
the inquiry whether claimant actually had a doctor’s appointment when he began his trip or
whether it had been cancelled before the journey began. It will be necessary to determine
whether a claimant was actually on his way to a doctor’s appointment as opposed to somewhere
else when a fall occurred. Moreover, the question of whether a fall was caused by the need to
travel to the doctor’s appointment or would have occurred absent any such trip will need to be
answered.8 Without the answers to such questions of fact, we cannot conclude whether a
particular injury is rightfully considered a compensable consequence of the industrial accident.
In this case, the Commission sat as fact-finder. Code § 65.2-706 (the findings of the full
Commission on review, “as provided in § 65.2-705, shall be conclusive and binding as to all
questions of fact”). Given that the Commission applied the rule of Mullins, it determined only
that claimant had not entered his vehicle at the time of the fall. It did not make further factual
findings because they were unnecessary under Mullins. Because we find that such facts are
necessary to make a determination under the appropriate standard, we remand to the Commission
to make such factual determinations and to consider whether the injuries claimant alleges to have
suffered as a result of the March 6, 2013 fall, were compensable consequences of his August 18,
2011 industrial accident.
Affirmed in part,
reversed in part,
and remanded.
8
We do not suggest that these are the only relevant questions in this or other cases in
which the issue of compensable consequences is to be decided.
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