WHW, Inc. v. Edward Calvin Bristow ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
WHW, INC. AND
SELECTIVE INSURANCE COMPANY OF AMERICA
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1460-99-2 JUDGE SAM W. COLEMAN III
JULY 5, 2000
EDWARD CALVIN BRISTOW
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy III (Patsy L. Mundy; Sands,
Anderson, Marks & Miller, on briefs), for
appellants.
William R. Curdts (Dunton, Simmons, & Dunton,
L.L.P., on brief), for appellee.
WHW, Inc. and its insurer, Selective Insurance Company of
America, appeal from the commission's award of temporary total
disability benefits to Edward Calvin Bristow. WHW argues that
the commission erred in finding that Bristow had not
constructively refused selective employment and that Bristow
reasonably marketed his residual capacity. Bristow
cross-appeals, arguing that the commission erred in sua sponte
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
terminating his benefits as of January 27, 1998. We disagree
and affirm the commission's decision.
I. BACKGROUND
On April 25, 1996, Bristow suffered a compensable neck,
back, and head injury in a motor vehicle accident while working
for WHW. Bristow was awarded temporary total disability
benefits from April 25 through October 10, 1996, when he was
returned to light-duty work.
After returning to light-duty work, Bristow did not seek
medical treatment for his injury between February 1997 to
November 1997. Bristow testified that after being released to
light-duty work, he nonetheless continued to experience lower
back pain. He testified that he did not seek additional medical
treatment for the pain during this period because he believed
that WHW would not pay for the treatment. On November 14, 1997,
complaining of lower back and neck pain, Bristow sought medical
treatment from his treating physician, Dr. George C. Green.
Bristow's treating physician diagnosed Bristow with chronic low
back sprain and instructed Bristow not to work with heavy
equipment for three weeks. On December 3, 1997, Bristow
suffered a stroke, which affected, among other things, his
speech. On December 10, 1997, Bristow saw Dr. Green for a
follow-up visit, and Bristow reported to Dr. Green that he had
not worked for three weeks, as prescribed, and that he was not
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experiencing any back or neck pain. Based on this examination,
Dr. Green opined that the vibrations from working as a heavy
equipment operator exacerbated Bristow's back injury and that
Bristow could not "return to his work as a heavy equipment
operator as the vibrations probably were exacerbating his
symptoms."
Dr. James R. Robusto, Bristow's family practitioner,
examined Bristow on December 15, 1997, and reported that as a
result of the stroke, Bristow had experienced excessive aphasia
and right facial weakness. Dr. Robusto noted that the only
residual effect from the stroke was speech difficulties for
which Bristow was receiving therapy.
Within weeks of having the stroke, Bristow attempted to
return to work because of financial considerations. He
testified that he still experienced back pain and that the
stroke left him with a speech impediment. On the day he
returned to work, his employer informed him that he was no
longer able to work for the company because his speech
impediment posed safety concerns. Bristow's supervisor
testified that, except for Bristow's speech impediment, he would
have been allowed to return to work.
On March 26, 1998, Bristow filed a claim with the
commission seeking temporary total disability benefits, alleging
an additional period of disability from December 10, 1997 and
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continuing. The commission awarded benefits from December 10,
1997 through January 27, 1998, finding that Bristow had
adequately marketed his residual capacity and that he was
temporarily totally disabled. The commission found that Bristow
presented evidence proving only that his disability extended
through January 27, 1998; thus, the commission did not address
whether Bristow's disability extended beyond that date.
II. ANALYSIS
On appeal, we view the evidence in the light most favorable
to Bristow, the prevailing party. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). We
accept the commission's factual findings when they are supported
by credible evidence. See James v. Capitol Steel Constr. Co.,
8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
A. Ability to Return to Selective Employment
WHW argues that the commission erred by finding that the
rule articulated in American Furniture Co. v. Doane, 230 Va. 39,
334 S.E.2d 548 (1985), and as applied by this Court in Eppling
v. Schultz Dining Programs/Commonwealth of Va., 18 Va. App. 125,
442 S.E.2d 219 (1994), is not applicable. WHW further argues
that the commission erred in determining that Bristow had not
constructively refused selective employment. WHW asserts that
after Bristow suffered a stroke which left him with a speech
impediment, he was unable to safely perform the duties of his
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light-duty employment. Thus, because Bristow's inability to
perform the light-duty work was caused by a factor unrelated to
his industrial accident, his inability to perform the light-duty
work was tantamount to a refusal of selective employment.
In Doane, the employee suffered a work-related injury to
her back. After the employee had surgery and recovered, the
attending physician released Doane to return to light-duty work.
Doane, however, failed to report for light-duty work because of
impairments to her hand, which were unrelated to and developed
after her back injury. Doane's treating physician opined that
the injury resulting from the industrial accident did not
preclude her from performing the offered selective employment.
The Supreme Court found the employer had met its burden of
producing evidence that the selective employment offered to
Doane was within her residual capacity. The Court found that
Doane, however, failed to show she was justified in refusing the
selective employment. The Supreme Court ruled that Doane failed
to show the necessary causal connection between her arm
impairment and her compensable injury. The Court held that
"[a]n employer, therefore, is absolved of liability for
compensation if the employee refuses selective employment
because of a physical condition unrelated to the original
industrial accident and arising since the accident." Doane, 230
Va. at 43, 334 S.E.2d at 550.
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In Eppling, the employee suffered a compensable injury and
was subsequently returned to light-duty work. The employee
accepted the light-duty work, but after one month was terminated
because of excessive absences caused by health problems
unrelated to her compensable injury. The commission found that
because the employee was terminated for cause, she was
permanently barred from receiving compensation benefits. We
held that the employee's inability to perform her selective
employment because of unrelated health problems did not bar her
from seeking reinstatement of her workers' compensation
benefits. However, we stated,
[w]hen a non-work-related disability
prevents a partially disabled employee from
returning to his or her pre-injury work or
from accepting selective employment, for
purposes of the Act, the unrelated
disability is not justification for the
employee to refuse or not to perform
selective employment or to fail to market
his or her residual work capacity. Thus,
the inability of a disabled employee to do
selective work or to market his or her
residual capacity due to an unrelated
disability is equivalent to an unjustified
refusal of selective employment.
Eppling, 18 Va. App. at 130, 442 S.E.2d at 222 (citation
omitted).
We find that WHW's reliance on Doane and Eppling are
misplaced. In September 1996, Bristow was released to
light-duty work with several restrictions. Dr. Green restricted
Bristow to no prolonged sitting or standing, lifting no more
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than twenty pounds, and operating only an excavator and tractor.
Dr. Green also advised that Bristow take as many breaks as
necessary. Bristow's medical records reflect that he continued
to experience back pain. Bristow was treated again on
November 14, 1997, when Dr. Green restricted Bristow from
operating any heavy machinery for three weeks. Bristow's
treating physician restricted Bristow's work activity and never
released him to his pre-injury work. "The threshold test for
compensability is whether the employee is 'able fully to perform
the duties of his pre[-]injury employment.'" Celanese Fibers
Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985)
(quoting Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d
605, 607 (1981)).
Credible evidence supports the commission's finding that
Bristow continued to suffer back pain caused by his compensable
injury until and continuing after his stroke on December 3, 1997
and that he was partially disabled due to the industrial
accident as of December 3, 1997. Thus, Bristow continued to be
partially disabled, and his "inability" to perform the
light-duty work was not based upon an unrelated disability that
prevented him from performing the work, but rather upon the
employer's decision that he not be permitted to do the work.
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B. Marketing Residual Capacity
WHW argues that the commission erred in finding that
Bristow adequately marketed his residual earning capacity after
his stroke.
A partially disabled employee is required to make
reasonable efforts to market his residual earning capacity to be
entitled to receive continued benefits. See National Linen
Serv. v. McGuinn, 8 Va. App. 267, 269, 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." Id. at 270, 380 S.E.2d at 33. "What
constitutes a reasonable marketing effort depends upon the facts
and circumstances of each case." Greif Companies (GENESCO) v.
Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). We hold
that the commission did not err in determining that claimant
adequately marketed his residual work capacity.
Here, the commission noted that Bristow's intervening
stroke affected his capacity to find suitable employment,
particularly in light of his work-related partial disability.
Dr. Harris opined that considering the type of labor in which
Bristow was experienced and capable of performing, and in light
of his training and educational level, he was "unemployable and
disabled for purposes of Social Security disability." Although
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Bristow's testimony was "vague" and did not clearly show what
efforts he had made to market his work capacity after the
stroke, the commission relied upon Dr. Harris' January 5, 1998
report which indicated that Bristow had job interviews scheduled
"through the state" before the stroke but, after the stroke, he
was not able to get an interview. In addition, he was ready and
willing to return to light-duty work with his employer. In
light of Bristow's level of education; prior work history, work
which he cannot now perform; and physical limitations from the
industrial accident and the stroke, the commission found that
Bristow made a reasonable effort to market his residual
capacity. Although the evidence of Bristow's efforts to secure
other employment is minimal, it appears that Bristow made
efforts under difficult circumstances to obtain job interviews
but was unable to secure the interviews. We find that the
commission's holding is supported by credible evidence.
C. Termination of Benefits
Bristow argues that the commission erred in sua sponte
closing the period of disability without evidence of when the
disability ended or was expected to end. He further argues that
the date the commission selected as the date the disability
period ended was an arbitrary date that lacks support in the
record.
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The commission determined that Bristow failed to show a
continuing disability beyond January 27, 1998, the date that his
last medical report showed he was to receive medical treatment
or attention. "There is no presumption in the law that once a
disability has been established, a claimant will be assumed to
remain disabled for an indefinite period of time. To the
contrary, a party seeking compensation bears the burden of
proving his disability and the periods of that disability."
Marshall Erdman & Assocs., Inc. v. Loehr, 24 Va. App. 670, 679,
485 S.E.2d 145, 149-50 (1997) (citation omitted). Here, the
last medical report was dated January 5, 1998, which showed that
he was to have further testing or treatment on January 26, 1998,
six months prior to the hearing before the deputy commissioner.
The commission noted that with the exception of the change in
intensity of Bristow's back pain reported on November 14, 1997,
the medical records reflect that Bristow's condition appeared to
be steadily improving following his return to work. In light of
the absence of proof of the continuing disability, or further
efforts to market his residual capacity, the commission did not
err in determining that Bristow was not entitled to disability
benefits after January 27, 1998.
Accordingly, we affirm the commission's decision and award
of benefits.
Affirmed.
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