Colonnades Marriott v. Princess E. Durden ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
COLONNADES MARRIOTT SENIOR LIVING
and
CONTINENTAL INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0761-97-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 4, 1997
PRINCESS ELIZABETH DURDEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Roger L. Williams (Vasiliki Moudilos;
Williams & Lynch, on brief), for appellants.
Robert L. Flax for appellee.
Colonnades Marriott Senior Living and Continental Insurance
Company (Colonnades) appeal from a decision of the Virginia
Workers' Compensation Commission granting temporary total
disability benefits to Princess Elizabeth Durden. Colonnades
contends (1) that the commission erred in amending Durden's
average weekly wage, and (2) that no credible evidence supports
the commission's finding that Durden sustained a continuing
disability related to her original work-place injury. We affirm
the commission's award.
I. BACKGROUND
On May 21, 1994, Durden, a registered nurse, injured her
right shoulder while moving a patient at Colonnades where she
worked on alternate weekends assisting patients with daily tasks
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and distributing medication, earning $134.08 per week. She also
worked a full-time job at Region Ten Community Services (Region
Ten), earning $310.76 per week. Her responsibilities at Region
Ten included ordering supplies, distributing medicine and
administering injections.
On May 4, 1995, Durden sought temporary total disability
benefits from Colonnades. The parties stipulated that her
average weekly wage was $134.08 and that she had sustained a
work-related injury to her right shoulder on May 21, 1994. The
deputy commissioner held that Durden had sustained a compensable
injury and awarded her medical benefits. However, because Durden
had missed only one day of work at Colonnades, the deputy
commissioner denied wage benefits. See Code § 65.2-509. The
deputy commissioner noted that:
Although the claimant acknowledged she did
not return to her employment at Colonnades
following her work-related accident on May
21, 1994, she was not scheduled on May 23 and
24, 1994, and there is no claim that the
employment at Region Ten is "similar,". . .
to that which she was doing at Colonnades.
The pain in Durden's right shoulder continued. An August
12, 1994 patient record from Prompt Care noted that Durden had
experienced a resurgence of pain in her right shoulder, after
being free of pain for several weeks. A February 23, 1995 office
report from The McKenzie Institute noted that Durden experienced
soreness, culminating in pain, in her left and right shoulders.
On March 6, 1995, Dr. S. Hughes Melton saw Durden for bilateral
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shoulder pain and wrote that her medical "history is rather
atypical and conflicting in nature." On March 21, 1995, he noted
that Durden may have suffered from "sick building syndrome" and
fibrositis. On May 8, 1995, Dr. Melton noted some improvement in
Durden's shoulder pain.
A May 19, 1995 radiology report from the University of
Virginia Health Sciences Center noted bilateral degenerative
changes. In a letter to Cynthia Rathgeb, a claims analyst,
Dr. Barbara S. True linked Durden's shoulder symptoms to
degenerative arthritis.
On January 17, 1996, magnetic resonance imaging confirmed
the presence of a small subacromial osteophyte, which "may cause
impingement." On January 19, 1996, Dr. Donald A. DeGrange
diagnosed impingement, noting in the record that Durden had
injured her right shoulder two years previously in a work-place
accident and had suffered intermittent pain which had increased
over the previous twelve months.
On April 15, 1996, Durden underwent right shoulder
arthroscopy with arthroscopic subacromial decompression and
bursal debridement. Following the surgery, she received physical
therapy, steroid injections and chiropractic treatment.
On May 6, 1996, Durden sought temporary total disability
benefits due to a change in condition. She also sought amendment
of her average weekly wage to include her earnings at both
Colonnades and Region Ten. Pursuant to Durden's interrogatory
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responses, the deputy commissioner limited the claim to a period
of disability from April 15, 1996 through May 25, 1996.
Durden testified that she had injured her right shoulder in
1977 and in 1986. Dr. Clair Tansey reported in an office note
following an October 23, 1986 visit that Durden experienced
continuous numbness over her right shoulder and intermittent pain
in her shoulder and fingers.
Following an ore tenus hearing, the deputy commissioner held
on December 20, 1995 that Durden had sustained a continuing
disability and awarded her temporary total disability benefits.
He denied amendment of Durden's average weekly wage to include
her income from Region Ten, concluding that:
[L]ack of knowledge of the law is not a
mutual mistake of fact. The opportunity was
available to address the similarity of
employments [at the December 14, 1995
hearing], and we do not find that because the
request was not made such failure equates to
either imposition or mutual mistake of fact.
On review, the full commission affirmed in part, finding
that "the evidence sufficiently establishes disability related to
the industrial injury." However, the commission reversed the
deputy commissioner's refusal to amend the average weekly wage,
deciding that: "neither the parties nor the Commission may have
been aware that the claimant's wages at Region Ten could be
relevant to an award of compensation benefits which constitutes a
mutual mistake of fact." Determining that the two employments
were "similar," the commission amended Durden's average weekly
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wage to include her earnings at Region Ten.
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II. AVERAGE WEEKLY WAGE
A.
Colonnades contends that the commission erred in amending
Durden's average weekly wage to include her earnings from Region
Ten. It argues that the December 20, 1995 award is a binding
adjudication of the wage amount.
In pertinent part, "average weekly wage" means: "[t]he
earnings of the injured employee in the employment in which he
was working at the time of the injury during the period of
fifty-two weeks immediately preceding the date of the injury,
divided by fifty-two." Code § 65.2-101(1)(a). The determination
of the average weekly wage is a question of fact to be determined
by the commission, and that determination will not be disturbed
on appeal unless it is unsupported by credible evidence. See
Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441-42,
339 S.E.2d 570, 573 (1986) (determining future average weekly
wage question of fact).
The parties' stipulation to Durden's average weekly wage
related to her earnings from Colonnades. We have recognized the
value of stipulations and have noted that they "'save both time
and expense for the litigants and are to be encouraged and not
condemned.'" Avon Products v. Ross, 14 Va. App. 1, 9, 415 S.E.2d
225, 229 (1992) (quoting Harris v. Diamond Construction Co., 184
Va. 711, 724, 36 S.E.2d 573, 579 (1946)).
However:
It seems to us that when the General Assembly
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established the Industrial Commission for the
summary disposition of cases arising out of
industrial accidents, it intended that that
tribunal should have jurisdiction to do full
and complete justice in each case. It
granted to the Commission the power and the
authority not only to make and enforce its
awards, but to protect itself and its awards
from fraud, imposition and mistake.
Harris, 184 Va. at 720, 36 S.E.2d at 577. Thus, while "[a]
compensation award is an adjudication of the entitlements and
obligations of the parties . . . [and as such] continues
according to its terms until it is modified or vacated," Rossello
v. K-Mart Corp., 15 Va. App. 333, 336, 423 S.E.2d 214, 216
(1992), the commission may vacate an award from which no party
sought timely appeal where the record discloses a mutual mistake
of fact. See Butler v. City of Virginia Beach, 22 Va. App. 601,
604, 471 S.E.2d 830, 832 (1996).
"In determining whether a mutual mistake of fact existed at
the time of the agreement, the inquiry is . . . whether each
party held the same mistaken belief with respect to a material
fact at the time the agreement was executed." Collins v.
Department of Alcohol Beverage Control, 21 Va. App. 671, 681, 467
S.E.2d 279, 283 (1996), aff'd, 22 Va. App. 625, 472 S.E.2d 287(1996).
Durden and Colonnades agreed to an average weekly wage.
However, their stipulation contained a mutual misstatement of
fact insofar as it sought to establish Durden's total weekly
wage. "The reason for calculating the average weekly wage is to
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approximate the economic loss suffered by an employee . . . when
there is a loss of earning capacity because of work-related
injury." Bosworth v. 7-Up Distributing Co., 4 Va. App. 161, 163,
355 S.E.2d 339, 340 (1987) (emphasis in original).
At the time of the first proceeding, only Durden's job with
Colonnades and her earnings therefrom appeared relevant. Because
she sought no compensation for lost work at Region Ten, the
calculation of her economic loss excluded employment from which
she suffered no loss of employment. The inference to be drawn
from the stipulation is that the parties intended to determine
only the wages relevant to that proceeding. Had the parties been
aware that Durden would require surgery and would suffer loss of
earnings from Region Ten, their considerations would have been
different. Cf. Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App.
601, 615, 401 S.E.2d 200, 208 (1991) (holding that had the
commission been aware that its refusal to reopen the file would
forever preclude presentation of evidence, it might have reopened
the claim). Thus, the evidence supports the commission's finding
that a mutual mistake of fact existed at the time the parties
agreed to the stipulation.
B.
Colonnades contends also that Durden's employment at
Colonnades and Region Ten was dissimilar. Thus, Colonnades
argues that Durden's earnings from both employments may not be
aggregated in calculating the average weekly wage. "The
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'dissimilar employment rule,' an interpretive rule adopted by the
commission, excludes wages earned in concurrent dissimilar
employment from an employee's 'average weekly wages.'" City of
Fairfax v. Massey, 11 Va. App. 238, 239-40, 397 S.E.2d 679, 680
(1990) (citing Hudson v. Arthur Treachers, 2 Va. App. 323, 326,
343 S.E.2d 97, 99 (1986)).
The commission found that Durden "utilizes essentially the
same nursing skills at both Colonnades and Region Ten, therefore,
the employments are similar." Durden testified that she provided
patient care, distributed medications, administered insulin
injections and performed chart work at Colonnades. At Region
Ten, she ordered supplies, distributed medications and
administered injections. Occasionally, she would assist a
patient from the clinic to a chair.
The findings of the commission, if based upon credible
evidence, are conclusive and binding upon this Court. Morris v.
Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986). Credible evidence supports the
commission's finding that Durden's employment at Colonnades and
her employment at Region Ten were similar.
III. CHANGE IN CONDITION
Colonnades contends that the commission erred in granting
Durden's application for a change in condition. Colonnades
argues that no credible evidence supports the commission's
finding that Durden's disability is related to her work-place
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injury.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
"Decisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on
this Court." Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991). See Code § 65.2-706. "The fact
that contrary evidence may be 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).
The evidence revealed that Durden suffered a work-place
injury. As a result, she began experiencing steadily increasing
pain in her right shoulder. While she suffered pain in her left
shoulder also, Durden attributed that pain to her inability to
use her right arm. Following a number of treatment strategies
and diagnoses, magnetic resonance imaging displayed a bone
impingement. The diagnosis of impingement syndrome was based
upon a medical history that included Durden's work-place injury.
The commission's finding that the evidence established a
causal relationship between Durden's current disability and her
work-place injury is supported by credible evidence. The
commission reviewed the evidence thoroughly. It interpreted the
medical records and Durden's testimony to support her assertion
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that she had suffered a change in physical condition caused by
her work-place injury. Specifically, the commission found that:
"The medical reports contain a consistent history of injury and
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corroborate the claimant's testimony regarding persistent right
shoulder pain since the accident which necessitated surgery."
The award of the commission is affirmed.
Affirmed.
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