Liz's Blue Diamond v. Joseph Rico ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
LIZ’S BLUE DIAMOND, INC. AND
VIRGINIA HOSPITALITY GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION* BY
v. Record No. 1943-98-1 JUDGE SAM W. COLEMAN III
JUNE 1, 1999
JOSEPH E. RICO
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Bradford C. Jacob (Taylor & Walker, P.C., on
brief), for appellants.
Keith Loren Kimball for appellee.
In this appeal from the Workers’ Compensation Commission, we
determine whether the commission erred by refusing to terminate
benefits based on the employer’s proof that claimant’s incapacity
to perform his pre-injury work is unrelated to his work injury.
The employer concedes that claimant sustained a compensable injury
rendering claimant temporarily totally disabled. Based on medical
reports, however, the employer now argues that claimant’s
continuing total disability results from medical conditions
unrelated to the compensable injury. We find that the commission
did not err in holding that employer did not bear its burden to
prove that claimant’s disability was wholly attributable to
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
medical conditions unrelated to the industrial accident.
Accordingly, we affirm the commission.
BACKGROUND
In 1993, Joseph Rico sustained compensable injuries to his
neck, back, and left shoulder while employed as a
bartender-manager for Liz’s Blue Diamond. The commission
entered an award for temporary total disability at the rate of
$108.50 per week.
In November of 1993, Dr. Markham restricted Rico to no more
than four hours of work and no lifting or carrying objects more
than two to three pounds. Dr. Markham noted that Rico suffered
from chronic hepatitis C. Until 1996, Rico sought treatment
from his family doctor. In 1996, Rico returned to Dr. Markham
complaining of pain at the base of the neck and in the upper
thoracic spine. Dr. Markham referred Rico to physiatrist Lisa
B. Barr, M.D.
Dr. Barr noted that chronic active hepatitis and chronic
obstructive pulmonary disease placed additional stress on Rico’s
neck muscles. She further opined that “if he were in fact
disabled from gainful employment, it would be on the basis of
his underlying medical conditions and not due to any permanent
residual from his alleged fall."
A functional capacities evaluation (FCE) performed on
June 7, 1996, revealed that Rico could safely be released to the
“sedentary-light physical demand level.” The FCE caused Dr.
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Barr to further note that it was “difficult to determine to what
extent his [unrelated] medical conditions [were] affecting his
lifting capacities.” In reviewing the FCE, Dr. Barr concluded
that at a minimum, Rico could perform sedentary light work.
Limiting her analysis solely to Rico’s work-related injury, Dr.
Barr believed that Rico’s “work-related cervical thoracic strain
injury [was] permanent and stable.” According to Dr. Barr,
Rico’s condition had stabilized and his functional disability
rated a “6% whole person impairment.” She concluded, based on
her assessment of The Dictionary of Occupational Titles, that
Rico could perform a bartending job with certain limitations.
He could not lift more than fifteen pounds occasionally, and he
could not perform repetitive or sustained overhead activities.
Dr. Barr also opined that Rico’s unrelated medical conditions
would actually preclude him from returning to any gainful
employment.
On March 11, 1997, Rico underwent another FCE. On March
14, 1997, Dr. Barr stated that although Rico was totally
disabled from working, the initial FCE represented “what he
could be expected to do under optimal circumstances, assuming we
are not going to consider his significant non-Workers’
Compensation related medical conditions.”
On September 15, 1997, Dr. Barr stated that Rico was
“clearly totally disabled from gainful employment and this total
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disability is largely based on his other underlying medical
problems.”
ANALYSIS
Employer filed an application to terminate temporary total
disability benefits based on the claim that Rico’s current
disability was unrelated to his industrial accident. When an
employer alleges a change in condition warranting termination of
an award, the burden is on the employer to prove the allegations
by a preponderance of the evidence. See Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986). The commission found that employer failed to meet this
burden. Because credible evidence supports the commission’s
finding, we affirm the decision.
Although the evidence proves that Rico’s non-compensable
medical conditions substantially contribute to his total
disability, the evidence also supports the commission’s finding
that the compensable injury has resulted in a permanent six
percent whole person impairment and the employer failed to prove
that this impairment did not disable the claimant from his
pre-injury work. Dr. Barr opined that this injury alone,
prohibited Rico from regularly lifting more than fifteen pounds
and from performing regular overhead tasks.
The definition of disability is “whether the employee is
able fully to perform the duties of his pre-injury employment.”
Celanese Fibers v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687,
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690 (1985). Employer did not provide a pre-injury job
description. Therefore, the evidence was insufficient for the
commission to conclude and for this Court to hold as a matter of
law that, given the physical limitations arising from Rico’s
compensable injury, he could return to his pre-injury
employment. Consequently, credible evidence supports the
commission’s holding that employer has not proved that Rico’s
disability is wholly unrelated to his compensable injury.
Employer argues that American Furniture Co. v. Doane, 230
Va. 39, 334 S.E.2d 548 (1985), and Eppling v. Schultz Dining
Programs, 18 Va. App. 125, 442 S.E.2d 219 (1994), support its
position. Those cases state that when an employer meets its
burden of proving that it offered a disabled claimant selective
employment within the claimant’s residual capacity, and the
claimant refuses the employment because of an unrelated physical
condition, then the claimant’s refusal is unjustified. See
Doane, 230 Va. at 42, 334 S.E.2d 550; Eppling, 18 Va. App. at
127, 442 S.E.2d at 220. Here, where employer has made no offer
of selective employment and has instead argued that the
disability is wholly unrelated to the industrial accident, those
cases lend no support.
Employer argues that it could not have offered selective
employment to the claimant because a totally disabled claimant
is not required to participate or cooperate in job placement
efforts while totally disabled. In support of its argument,
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employer cites the commission’s holding in Gardner v. Legum Home
Health, 74 O.I.C. 97 (1995), that an “employee has no obligation
to work with vocational rehabilitation until [he or] she is
medically released to return to selective employment.” However,
whether claimant’s compensation benefits should be terminated
because he is unable to market his residual capacity due to
unrelated disabilities was not before the commission.
Therefore, the commission’s holding does not directly address
issues of selective employment or the duty to market residual
capacity, and we are not called upon to consider those issues on
appeal.
Because the evidence supports the commission’s holding that
employer did not prove Rico’s disability was unrelated to his
compensable injury, we affirm the commission’s denial of
employer’s application for termination of benefits.
Affirmed.
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