James M. Blaker v. Perry's Heating, Air & Elec., et ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
JAMES M. BLAKER
MEMORANDUM OPINION* BY
v. Record No. 1010-99-1 JUDGE NELSON T. OVERTON
JUNE 6, 2000
PERRY'S HEATING, AIR AND ELECTRIC, INC.
and
HARTFORD CASUALTY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
W. Mark Broadwell (Forbes & Broadwell, on
brief), for appellant.
F. Nash Bilisoly (Kelly O. Stokes;
Vandeventer Black, L.L.P., on brief), for
appellees.
On appeal from a decision of the Workers' Compensation
Commission, James M. Blaker contends that the commission erred
in finding (1) that he unjustifiably refused to attend a medical
examination, as directed by Code § 65.2-607(A), scheduled on
July 15, 1997, (2) that Perry's Heating, Air and Electric, Inc.,
and its insurer did not engage in improper medical management by
scheduling the July 15, 1997 appointment, and (3) that Blaker
failed to adequately market his residual work capacity. The
record supports the findings of the commission, and we affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. Background
On appeal, we view the evidence in the light most favorable
to the party prevailing below. See Crisp v. Brown's Tysons
Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916
(1986). The findings of the commission, if based on credible
evidence, are conclusive and binding on this Court. See Morris
v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986). "[W]e follow the settled rule that the
construction accorded a statute by public officials charged with
its administration is entitled to be given weight by the courts.
Indeed, this Court has said that the commission's construction
of the Workers' Compensation Act should be given 'great'
weight." Bohle v. Henrico County School Board, 246 Va. 30, 35,
431 S.E.2d 36, 39 (1993) (citations omitted).
Blaker, an electrician, suffered multiple injuries to his
mouth and neck while helping a co-worker on November 4, 1994.
The co-worker inadvertently struck Blaker in the face with a
hammer. He received an award for those injuries from the
commission. Perry's filed an application in July 1997 for a
hearing to terminate or suspend benefits based upon the grounds
that Blaker had returned to work and that he had failed to
attend a medical appointment with his treating physician. After
the hearing was docketed, Blaker broke his leg in a
non-work-related injury. He was released for work on January 7,
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1998, and filed an application for benefits as of January 8,
1998.
Both applications were heard in a single hearing. At the
hearing, Blaker admitted that he had returned to work for a
time, but defended against Perry's position by asserting that
Perry's had engaged in improper medical management with regards
to the July 1997 medical appointment. The deputy commissioner
refused to rule on the issue of improper medical management. He
found that Blaker had unjustifiably refused to attend the
appointment and that Blaker's refusal to seek employment outside
of his union constituted a failure to adequately market his
residual capacity. The full commission affirmed.
II. Refusal to Attend Examination
Blaker contends that the commission erred in finding that
he refused to attend the July 15, 1997 medical appointment. He
argues that he had no notice that the appointment was to be an
"independent medical examination" and, therefore, his attendance
was not mandatory under Code § 65.2-607. Code § 65.2-607
provides, in relevant part:
A. After an injury and so long as he
claims compensation, the employee, if so
requested by his employer . . . , shall
submit himself to examination, at reasonable
times and places, by a duly qualified
physician or surgeon designated and paid by
the employer . . . .
B. If the employee refuses to submit
himself to or in any way obstructs such
examination requested by and provided for by
the employer, his right to take or prosecute
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any proceedings under this title shall be
suspended until such refusal or objection
ceases and no compensation shall at any time
be payable for the period of suspension
unless in the opinion of the Commission the
circumstances justify the refusal or
obstruction.
Blaker admits that he received notice of the July 15, 1997
appointment. He did not attend the appointment, nor did he
notify the employer, insurance company, or commission of his
reasons for refusing to attend the appointment. Blaker argues
that Dr. Byrd was no longer his treating physician, and so the
appointment was improper medical management. See infra. The
fact that he did not consider Dr. Byrd to be his treating
physician any longer and that his course of treatment with Dr.
Byrd had ended, coupled with the contents of the notification
letter, support the commission's finding that Blaker was on
notice that the July 15, 1997 appointment was an examination
requested by the employer, and not an attempt by the employer to
force Blaker into a renewed course of treatment with Dr. Byrd.
III. Improper Medical Management
Blaker further argues that the July 15 appointment with Dr.
Byrd was improper medical management by Perry's. For the
reasons stated above, the record supports the commission's
finding that the appointment was not a forced course of
treatment, but rather an examination requested by Perry's under
Code § 65.2-607. Both parties admit that Dr. Byrd had not
anticipated seeing Blaker for further treatment, as Blaker had
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reached maximum medical improvement based on his decision to
treat the problem medically rather than surgically. Nothing in
the record, aside from Blaker's conclusory allegations, supports
a finding that Perry's was attempting to force Blaker to use Dr.
Byrd as his treating physician and to renew treatment with him.
IV. Failure to Adequately Market Residual Capacity
Blaker contends that the commission erred in finding that
he failed to market his residual capacity when seeking
employment. Blaker joined a union after his injury and, once
released to light duty work, sought employment only through the
union channels. Blaker argues that he was required to do this
or risk losing his status as a union member in good standing.
A claimant who is released to light-duty work must prove
that he has made a reasonable effort to market his remaining
work capacity during any period for which benefits are sought.
See Washington Metro. Transit Auth. v. Harrison, 228 Va. 598,
601, 324 S.E.2d 654, 655 (1985).
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
[Perry's], as [the employer] was the
prevailing party before the commission.
However, where there is no conflict in the
evidence, as here, the question of the
sufficiency of the evidence is one of law.
National Linen Service v. McGuinn, 8 Va. App. 267, 270, 380
S.E.2d 31, 32 (1989) (citations omitted).
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Blaker has worked as an electrician since 1969. At the
time of his compensable injury, he was working as an electrician
in a non-union job. He joined the union of his own volition
after the injury, in June 1997. Once released to light-duty
work, he confined his search for employment to those jobs
approved by the union; he telephoned the union employment "hot
line" a few times per week and visited the local union hall
every few weeks.
This case is distinguishable from U.S. Air, Inc. v. Joyce,
27 Va. App. 184, 497 S.E.2d 904 (1998). In Joyce, the employee
had worked for U.S. Air for seventeen years as a mechanic. His
employment contract was under a union contract, which prohibited
employees from seeking work outside of U.S. Air. After his
injury, Joyce could not return to his previous job, and so
requested a release from the employer to seek outside employment
without penalty of losing that union job. U.S. Air refused.
In Joyce's case, his very employment was tied to the union
contract. The employer prohibited Joyce from seeking outside
employment and then argued that Joyce had refused to seek such
employment. In Blaker's case, he joined the union of his own
choice, after the injury, and then argued that such choice
limited his employment options. Under the facts and
circumstances of this case, we cannot say as a matter of law
that Blaker's evidence sustained his burden of proving that he
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made a good faith, reasonable effort to market his residual work
capacity.
The judgment of the commission is affirmed.
Affirmed.
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