Sergeants Pet Products v. Charles L Harrison ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
SERGEANTS PET PRODUCTS AND
CONAGRA FOODS, INC.
MEMORANDUM OPINION*
v. Record No. 2360-02-2 PER CURIAM
JANUARY 14, 2003
CHARLES LEO HARRISON, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kathryn Spruill Lingle; Theisen & Lingle,
P.C., on brief), for appellants.
(Gerald G. Lutkenhaus; The Law Office of
Gerald G. Lutkenhaus, on brief), for
appellee.
Sergeants Pet Products and Conagra Foods, Inc. (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that Charles Leo Harrison, Sr.
proved that he (1) sustained a change-in-condition, and is
entitled to temporary partial disability benefits commencing
October 13, 2001; and (2) adequately marketed his residual work
capacity. Upon reviewing the record and the parties' briefs, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Disability
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
So viewed, the evidence proved that on February 2, 1998,
while working for employer as a packing mechanic, claimant
sustained a compensable crush injury to his dominant right hand.
His pre-injury job required that he operate various machines and
lift rolls of wrap weighing fifty to one-hundred pounds and
place them on machines. He also had to use tools to adjust
nuts, bolts, and screws. Claimant testified that he could no
longer use tools because he did not have enough strength in his
right hand.
On March 12, 1998, Dr. Garpal S. Bhuller released claimant
to return to his pre-injury work.
On November 12, 1998, Dr. Glenn Carwell noted "point
tenderness over apparent neuromas stemming from the radial nerve
on the dorsum of his right hand where they terminate in scar
tissue from the previous lacerations." Dr. Carwell advised
claimant that "this problem might be improved by resecting the
neuromas in transplanting the blind nerve endings to an area
where they would be less likely to be irritated within the
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dorsal interosseous muscles." Dr. Carwell also saw a small
nodule over the volar aspect of the ring finder, which was
either a scar reaction to the injury or a possible giant cell
tumor of the tendon sheath. Dr. Carwell recommended resecting
the mass.
In January 1999, Dr. Raymond Iglecia, Sr., who had been
treating claimant since October 1998, noted claimant's diagnoses
of Reflex Sympathetic Dystrophy of the right hand and chronic
pain disorder. Dr. Iglecia noted that claimant was totally
disabled as a result of his work injury.
On September 1, 2000, Dr. Carwell performed surgery for the
neuromas. On February 11, 2001, claimant returned to
Dr. Bhuller, who noted that there had been little change in
claimant's hand function since 1999, and indicated that he would
determine claimant's work capacity after an evaluation by a hand
therapist.
In March 2001, Dr. Iglecia opined that claimant had
developed classic signs of a chronic pain disorder secondary to
his compensable injury.
On March 16, 2001, Dr. Lawrence Morales gave claimant an
eight percent permanency rating for his right hand causally
related to his February 2, 1998 compensable injury by accident.
On October 24, 2001, Dr. Morales opined that claimant could not
perform his pre-injury work.
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Claimant's medical records provide credible evidence to
support the commission's conclusion that claimant sustained a
change in condition and is entitled to partial disability
benefits commencing October 13, 2001. The medical records prove
that claimant's pain has worsened; that he underwent surgery in
September 2000, that he received an eight percent permanency
rating in March 2001, and that he is currently unable to perform
his pre-injury work. Accordingly, we will not disturb the
commission's finding on appeal.
II. Marketing
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 on the facts
and circumstances of each case." The Greif Cos. v. Sipe, 16
Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) (citation
omitted). When the commission's factual determinations are
supported by credible evidence, they will not be disturbed on
appeal. Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217,
220-21, 527 S.E.2d 451, 453 (2000). The commission determines
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the weight to give the various criteria it considers. National
Linen, 8 Va. App. at 272, 380 S.E.2d at 34 (citing relevant
factors).
In ruling that claimant proved he made reasonable efforts
to market his residual work capacity, the commission found as
follows:
[T]he claimant is 63 years old, with an
eighth grade education. His employment has
always involved work using his hands. The
employer gave no job search assistance. The
claimant registered with the Virginia
Employment Commission [("VEC")], and
contacted a number of businesses. He has
obtained regular employment performing
custodial duties at his church. Under these
circumstances, we agree with the deputy
commissioner that the claimant is entitled
to temporary partial disability benefits.
Claimant provided written documentation of the numerous
employers from whom he sought employment. He testified that he
had been employed by his church providing custodial services
since at least October 2001. He registered with the VEC, which
had not been able to find him a higher paying job. The
commission weighed evidence of the degree of claimant's
impairment, his age, his limited education, his work history,
his marketing efforts, and the lack of job search assistance
from employer. Based upon credible evidence in this record and
taking into account the factors enunciated in National Linen,
the commission, as fact finder, could reasonably conclude that
claimant adequately marketed his residual work capacity. "In
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determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991).
For these reasons, we affirm the commission's decision.
Affirmed.
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