City of Alexandria v. D. Eloise Clephas ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff
CITY OF ALEXANDRIA
v. Record No. 1777-95-4 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
D. ELOISE CLEPHAS MAY 14, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Philip G. Sunderland (Amy Marschean; Office
of the City Attorney, on briefs), for
appellant.
John J. O'Donnell, Jr., for appellee.
This matter came before the commission on the application of
appellant, City of Alexandria ("employer"), alleging appellee,
D. Eloise Clephas ("claimant"), was able to return to her
pre-injury employment. The deputy commissioner concluded that
claimant could return to work and terminated her temporary total
compensation. The full commission reversed, and employer
appeals. Finding no error, we affirm.
I.
On June 3, 1991, claimant suffered a compensable injury by
accident when she fell down a staircase while inspecting a
building. Claimant injured her right shoulder and also suffered
pain in her neck and lower back and numbness in her hands. On
January 10, 1992, claimant underwent surgery to repair her right
rotator cuff and right carpal tunnel. Claimant subsequently
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
developed Reflex Sympathetic Dystrophy ("RSD") and remained
unable to work.
On the day of her accident, claimant worked as an Existing
Structures Inspector for employer and was responsible for
enforcing city property standards by inspecting residential and
commercial facilities. A job description completed in 1991
indicates that inspectors had to crawl, climb ladders, push or
pull boxes, and lift a maximum of fifteen pounds occasionally,
estimated to be one-third of the time or less. The 1991
description included tasks that inspectors might encounter on the
job, but that the job did not necessarily require.
Claimant testified that, while the job required her to crawl
on occasion, she never found it necessary to open a fire door or
climb a ladder. Another inspector, Patricia Walker, testified
that she had never had to crawl or climb a ladder, but that she
found it necessary to open fire doors. Both Walker and the
inspectors' supervisor, Thomas Flynn, testified that if an
inspector faced a situation requiring the inspector to crawl, the
inspector was instructed to seek assistance from other city
personnel such as the Police, Fire Department, Animal Control, or
New Construction Inspectors. Flynn testified that an inspector
might have found it necessary to climb a stepladder to test a
smoke alarm but stated that not all inspectors use the same
techniques in performing their work. Walker testified that she
uses a three-foot stick to test smoke alarms, for example.
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Walker, Flynn, and claimant all testified that the job required
writing and the use of a computer keyboard to input collected
data.
In light of the 1991 job description, none of the four
physicians who examined claimant from the date of her accident
through the Spring of 1994 concluded that claimant had recovered
sufficiently to return to full employment. One of those four,
Dr. Roger Gisolfi, ordered a Functional Capacity Evaluation
("FCE") and other tests in June 1994.
On July 25, 1994, employer prepared a new job description
for claimant's position. The 1994 description eliminated any
requirement regarding climbing ladders or crawling. It describes
the typical inspector's day as requiring one and one-half hours
of paperwork before beginning inspections, frequent movement in
and out of a car, continuous walking in and out of buildings, and
the use of a three-foot, one-pound stick to test safety devices
during inspections. The 1994 description indicates that
inspectors are to have property owners move furniture, and, where
high or unsafe areas are to be inspected, inspectors are required
to seek assistance from other city personnel such as the Fire
Department, Police Department, Animal Control, or each other.
The 1994 description describes standing, walking, and driving as
the main physical activities associated with the job and notes
that the job requires continuous "Fine motor - finger" activity
and extensive writing. The 1994 description further indicates
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that no climbing, crawling, or heavy pushing, exceeding thirty
pounds, is required and that only rarely would an inspector have
to push small furniture or a fire door. The 1994 description was
compiled to comply with the Americans With Disabilities Act,
which requires that only the essential functions of a job be
described. That description was based on an interview with the
inspectors' supervisor and observations of an inspector at work.
Based on the 1994 job description and the findings of the
1994 FCE, Dr. Gisolfi released claimant to return to full
employment on August 17, 1994. On August 31, employer filed an
application for hearing, seeking to terminate claimant's
temporary total benefits. Subsequently, claimant was examined by
Dr. David Kavjian and Dr. Hugo Davalos. Based on their
examinations of claimant and their review of the results from the
tests conducted in June 1994, both Drs. Kavjian and Davalos
concluded that claimant remained limited in her functional
capacity and could not return to full employment. It is unclear
upon which job description Drs. Kavjian and Davalos based their
opinions.
The full commission reversed the deputy commissioner's
decision to terminate benefits, concluding that employer had not
proven claimant capable of performing her pre-injury job. The
commission found that all of the doctors agreed with the
diagnosis of RSD and bilateral carpal tunnel syndrome. It also
focused on Dr. Gisolfi's testimony that claimant could not get on
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her hands and knees, climb ladders, or open heavy doors. The
commission concluded that, although claimant's job description
had been revised to eliminate those activities, employer failed
to meet its burden of proving claimant able to make a full and
unconditional return to all aspects of her pre-injury employment.
II.
Factual findings made by the commission are "conclusive and
binding" upon this Court on review. Code § 65.2-706. A question
raised by conflicting medical opinion is a question of fact.
Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687,
690 (1985); City of Norfolk v. Lillard, 15 Va. App. 424, 429, 424
S.E.2d 243, 246 (1992). This Court on appeal does not judge the
credibility of the witnesses or weigh the evidence. Johnson, 229
Va. at 121, 326 S.E.2d at 690. "[I]t is our duty to determine
whether credible evidence supports the commission's findings
. . . and, if such evidence exists, to sustain the finding." Id.
(quoting Cook v. City of Waynesboro, 225 Va. 23, 31, 300 S.E.2d
746, 750 (1983)); see also Stancill v. Ford Motor Co., 15 Va.
App. 54, 58, 421 S.E.2d 872, 874 (1992).
The threshold test for compensability is whether the
employee is able fully to perform the duties of pre-injury
employment. Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284
S.E.2d 605, 607 (1981); Johnson, 229 Va. at 120, 326 S.E.2d at
690. Employer contends that the commission failed to apply the
correct test in evaluating whether claimant was precluded from
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performing her pre-injury job and erred in rejecting the revised
job description. It contends the commission erroneously focused
not on claimant's pre-injury duties as defined in the new job
description but on the potential physical activities associated
with the job as set forth in the earlier description. We assume,
without deciding, that the revised job description, which
eliminated climbing, crawling, and opening heavy fire doors,
provided a reliable basis for determining claimant's pre-injury
work requirements and that it was error to disregard it.
Nonetheless, we find credible evidence in the record to support
the commission's decision, notwithstanding its failure to
consider the 1994 description.
Employer does not dispute that the job, according to either
description, requires employees to use their hands for a variety
of fine motor tasks, such as typing and extensive writing. The
evidence in the case establishes, however, that claimant's use of
her hands was limited and that she is not fully capable of
performing such tasks. Medical evidence shows that claimant was
limited to work which did not require "the repetitive use of the
hands such as typing" and that claimant remained "very limited in
her functional ability, particularly with respect to her hands."
Tests ordered by Dr. Gisolfi confirm that claimant was
restricted in the use of her right hand and showed changes
consistent with RSD in that hand. Dr. Gisolfi also notes that
cold temperatures could affect claimant's RSD. Claimant herself
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testified that she had difficulty writing, using a keyboard, and
holding handrails, and that cold weather, in which the job
required her to work, caused her great pain.
The existence of medical evidence in the case supporting
employer's contention that claimant could return to work is not
determinative. See Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991). Where there is credible
evidence to support the commission's findings, the award will be
affirmed. Id.
Accordingly, the commission's decision is affirmed.
Affirmed.
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