Double M Coal Companyv Scott Wayne Collins ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
DOUBLE M COAL COMPANY AND
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH
MEMORANDUM OPINION* BY
v. Record No. 0560-01-3 JUDGE JERE M. H. WILLIS, JR.
OCTOBER 16, 2001
SCOTT WAYNE COLLINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy III (Sands Anderson Marks &
Miller, on brief), for appellants.
D. Allison Mullins (Lee & Phipps, P.C., on
brief), for appellee.
On appeal from a decision of the Workers' Compensation
Commission, Double M Coal Company and its insurer, National
Union Fire Insurance Company of Pittsburgh (together DMCC),
contend that the commission erred (1) in holding that Collins
established compensable disability within the two-year statute
of limitations contained in Code § 65.2-601, (2) in holding that
Collins proved a change in condition, (3) in holding that
Collins adequately marketed his residual work capacity, (4) in
disregarding their defense that Collins had to cure a refusal to
cooperate with medical treatment, and (5) in holding that
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Collins had not failed to cooperate with medical treatment.
Finding no error, we affirm the commission's decision.
I. BACKGROUND
On January 22, 1998, Scott Wayne Collins was employed as a
coal miner by Double M Coal Company. On that day, a rock fell
on him. He was knocked backward where he struck a tire on a
bolt machine. He alleged injuries to his back, left arm, left
shoulder and neck.
By opinion issued September 18, 1998, the deputy
commissioner determined that Collins had sustained an injury to
his left ulnar nerve and his left shoulder but that his back
condition was not causally related to the occupational accident.
The deputy commissioner entered an award for medical benefits,
but awarded no indemnity benefits because Collins was totally
disabled for one day only and had failed to market his residual
work capacity. The full commission affirmed.
On October 16, 1998, Collins filed a change-in-condition
application, seeking temporary total disability benefits
beginning October 1, 1998, and continuing. By opinion dated
March 1, 2000, the deputy commissioner denied Collins' claim,
finding no proof of disability causally related to the
occupational accident.
On January 12, 2000, Collins filed a change-in-condition
application, seeking temporary total disability benefits
beginning December 15, 1999, and continuing. The deputy
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commissioner awarded temporary total disability benefits to
Collins, finding that he had established a change in condition
and that he had marketed his residual work capacity. She
further ruled that the March 1, 2000 opinion had not held that
Collins failed to cooperate and, therefore, had impressed upon
him no obligation to cure.
The full commission affirmed.
II. TWO-YEAR STATUTE OF LIMITATIONS
DMCC contends that the commission lacked jurisdiction to
award Collins disability benefits because he failed to prove a
disability existing within the two-year statute of limitations
contained in Code § 65.2-601. 1 Relying on Mayberry v. Alcoa
Bldg. Prods., 18 Va. App. 18, 441 S.E.2d 349 (1994), 2 DMCC argues
that, in addition to filing a claim for benefits within the
two-year statute of limitations period, Collins was also
required to prove an "awardable" work incapacity within two
years from the date of his accident. DMCC argues that, because
1
Code § 65.2-601 provides that "[t]he right to compensation
under this title shall be forever barred, unless a claim be
filed with the Commission within two years after the accident."
2
The issue in Mayberry was whether the claimant had an
"awardable work incapacity within two years from the date of his
accident." Mayberry, 18 Va. App. at 19, 441 S.E.2d at 349.
Mayberry did not miss any time from work until two years and two
months after the date of his accident, and his initial
disability occurred a full two months after the statute of
limitations had expired. We concluded that the claim was barred
by the statute of limitations "[b]ecause Mayberry did not file a
timely application or demonstrate any disability during the two
year period . . . ." Id. at 20, 441 S.E.2d at 350.
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Collins could not prove an "awardable" work incapacity until
Dr. Moore's January 25, 2000 work restrictions, which was beyond
the two-year period, Collins' claim is time barred.
DMCC argues on brief that "[t]he Full Commission did not
find that any medical evidence adduced at this hearing
demonstrated disability causally related to [Collins'] January
22, 1998 accident before the January 25, 2000 report by
Dr. Moore." This is an inaccurate reading of the full
commission's decision.
While the deputy commissioner determined that Collins did
not establish entitlement to an award of disability benefits
prior to Dr. Moore's January 25, 2000 opinion issuing permanent
restrictions, the full commission held:
There is no question . . . that [Collins]
was partially disabled before January 25,
2000.
For example, on December 13, 1999,
Dr. Moore examined [Collins] for his "ulnar
nerve palsy," with complaints of "L arm
number and number," and on January 25, 2000,
Dr. Moore's restrictions listed "left ulnar
neuropathy" as a basis for the restrictions.
There was no indication, however, that this
condition was new to [Collins]. To the
contrary, Dr. Moore noted that [Collins] had
suffered from this condition since "rock
fall in mines." Thus, Dr. Moore issued his
restrictions on January 25, 2000, when
requested; [Collins] suffered from
disability well before then. Regardless, in
a prior opinion issued September 18, 1998,
the deputy commissioner found that [Collins]
was only partially disabled and declined to
award compensation benefits because he did
not prove adequate marketing. Therefore,
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unlike the employee in Mayberry, who was not
able to "demonstrate any disability during
the two year period" after the accident, the
Commission has already determined that
[Collins] was disabled within two years
after the compensable accident.
Credible evidence supports this finding. Moreover, DMCC's
reliance on Mayberry is misplaced. Although we held in Mayberry
that the claim was time barred, we said: "Had Mayberry filed a
claim for compensation benefits before the statute had run, or
received a formal award, he would have been eligible for
Workers' Compensation benefits." Mayberry, 18 Va. App. at 21,
441 S.E.2d at 351. Here, Collins, in fact, did file his claim
for benefits before the statute had run. Collins' accident
occurred on January 22, 1998, and his current claim was filed on
January 12, 2000. Therefore, the claim filed by Collins is not
barred by Code § 65.2-601.
III. CHANGE IN CONDITION
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground
of change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). Factual findings made by the commission will
be upheld on appeal if supported by credible evidence. See
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James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
The commission ruled that Collins "was partially disabled
because of his left arm condition, and was under Dr. Moore's
restrictions as of January 25, 2000." In so ruling, the
commission found as follows:
The medical evidence indicated that
Dr. Moore treated [Collins] for his arm and
shoulder problems since December 1998. On
January 25, 2000, Dr. Moore noted that
[Collins] "needs restrictions, rock fall in
mines -- L arm -- ulnar nerve, L shoulder
-- rotator cuff, back injury, anxiety,
depression." Dr. Moore listed the following
diagnoses: "Left ulnar neuropathy -- comp
injury; degenerative disc disease
-- thoracic -- previous injury; left rotator
cuff injury -- comp injury; anxiety with
depression." He gave the following
restrictions:
(1) No gross or fine manipulation with
[left] hand. No lifting over 1 lbs
[with] left arm. No lifting above
shoulder level with left arm. (2) No
lifting [with] back over 5 lbs. No
bending, stooping, climbing, squatting.
(3) Rt. arm should be free to use
Colorado crutch when walking or
standing. (4) Walking or standing
-- 2 hours in an 8 hour day. (5)
Sitting -- 3 hours in an 8 hour day.
(6) driving -- up to 20 minutes at a
time.
* * * * * * *
The deputy commissioner acknowledged that
Dr. Moore's restrictions included items not
related to [Collins'] left-arm condition,
such as restricted bending, sitting,
standing, and driving. We believe the
deputy commissioner reasonably concluded,
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however, that Dr. Moore's first restriction
of "no gross or fine manipulation" with the
left hand, as well as limited lifting with
the left arm, concerned [Collins']
compensable left-arm neuropathy. As for the
causal connection between [Collins']
left-arm condition and his restricted
activities, Dr. Moore clearly indicated that
his condition was "comp injury" caused by
"rock fall in mines." Moreover, Dr. Moore
has treated [Collins] for this problem since
December 1998.
As the fact finder, the commission was entitled to weigh
the medical evidence and to accept the opinion of Dr. Moore,
Collins' treating physician since the accident. Dr. Moore's
medical reports and opinions constitute credible evidence to
support the commission's finding that Collins "was partially
disabled because of his left arm condition, and was under
Dr. Moore's restrictions as of January 25, 2000." Accordingly,
that finding is binding and conclusive upon us on appeal. See
id.
IV. FAILURE TO MARKET RESIDUAL WORK CAPACITY
DMCC next argues that the commission erred in finding that
Collins adequately marketed his residual work capacity.
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
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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).
At the hearing before the deputy commissioner, Collins
testified that he made "between four and six" contacts a week in
his attempt to market his residual work capacity. Further, he
submitted a list of potential employers that he contacted. The
commission found that Collins' "efforts . . . were reasonable."
The commission's finding is supported by credible evidence,
i.e., Collins' testimony and his list of contacts, and will not
be disturbed on appeal.
V. CURE OF REFUSAL OF MEDICAL TREATMENT
Next, DMCC contends that Collins was required to show that
he cured a refusal of medical treatment. In a March 1, 2000
opinion on an earlier change-in-condition claim, the deputy
commissioner held:
We find no medical evidence supporting
[Collins'] disability based upon his left
ulnar nerve and left shoulder injury. In
fact, we cannot find medical evidence
supporting [Collins'] disability based upon
his noncompensable back injury. We believe
that [Collins] failed to cooperate with the
physical therapist performing his Functional
Capacity Evaluation. We also believe that
he was somewhat recalcitrant with his own
doctors. Based upon all of the
circumstances of this case, we find that
[Collins] has failed in his burden of
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proving that he suffered a change in
circumstances and/or that he has been
temporarily totally disabled since October
1, 1998.
Collins v. Double M Coal Co., VWC File No. 190-13-92 (Mar. 1,
2000). DMCC now argues that Collins was required to show that
he "cured" this "refusal" before he can be awarded benefits for
his present claim.
DMCC's reliance on the March 1, 2000 opinion is based on
the deputy commissioner's dictum following his decision not to
award benefits. In the March 1, 2000 opinion, the deputy
commissioner stated, "[Collins] failed to cooperate with the
physical therapist performing his Functional Capacity
Evaluation," and "[Collins] was somewhat recalcitrant with his
own doctors."
We do not believe the deputy commissioner's dictum is
relevant to the holding that Collins had failed to prove
disability. Further, these two statements by the deputy
commissioner in no way establish that Collins refused a surgical
decompression procedure on his left arm. Therefore, Collins was
under no duty to "cure" any "refusal" of medical treatment. As
the commission correctly determined, "[DMCC's] 'failure to cure'
defense was, in essence, a defense that [Collins] refused
reasonable and necessary medical treatment under Code
§ 65.2-603."
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VI. REFUSAL OF MEDICAL TREATMENT UNDER CODE § 65.2-603
Next, we consider whether Collins is barred from receiving
compensation for unjustifiably refusing to accept medical
treatment. See Code § 65.2-603; Shawnee Management Corp. v.
Hamilton, 25 Va. App. 672, 678, 492 S.E.2d 456, 459 (1997) (en
banc). Whether or not he refused medical treatment is a
question of fact. Id. In determining whether Collins' refusal
of treatment is justified, we review the evidence from his
perspective and "in light of the information available to [him]"
at the time of his decision. Holland v. Virginia Bridge &
Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868
(1990) (citation omitted).
In finding that the evidence failed to establish an
unjustified refusal of medical treatment, the commission found
as follows:
Dr. Smith concluded on April 1, 1999, that
considering "[Collins'] numerous complaints,
it is felt at this point, an ulnar nerve
release would offer very little relief to
his overall pain pattern and generalized
loss of function due to his ongoing pain."
Dr. Nabil Ahmad, a physical medicine
specialist, on the other hand, believed
[Collins] should undergo the surgery, as
shown by his September 9, 1999, referral to
Dr. Smith "as far as surgical release."
Dr. Smith, however, did not recommend
surgery. There was also no indication that
Dr. Moore believed surgery was advisable, as
shown by his January 25, 2000, referral to a
pain clinic in Johnson City for [Collins']
complaints. Thus we agree with the deputy
commissioner that the evidence failed to
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establish an unjustified refusal of medical
treatment.
"[I]t is fundamental that a finding of fact made by the
Commission is conclusive and binding upon this court on review.
A question raised by conflicting medical opinion is a question
of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347
S.E.2d 532, 533 (1986) (citations omitted). The commission was
free to accept the opinions of Drs. Smith and Moore, and to
reject the opinion of Dr. Ahmad. Their opinions constitute
credible evidence to support the commission's decision that the
evidence failed to establish an unjustified refusal of medical
treatment.
For these reasons, we find that the commission did not err
in awarding temporary total disability benefits to Collins.
Accordingly, we affirm the commission's decision.
Affirmed.
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