Flenner vHoy Construction, Inc. and Liberty Mutual

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
HOY CONSTRUCTION, INC. AND
LIBERTY MUTUAL FIRE INSURANCE CO.
v. Record No. 2152-99-1
HOWARD FLENNER OPINION BY
JUDGE RICHARD S. BRAY
HOWARD FLENNER MAY 2, 2000
v. Record No. 2229-99-1
HOY CONSTRUCTION, INC. AND
LIBERTY MUTUAL FIRE INSURANCE CO.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford C. Jacob (Taylor & Walker, P.C., on
briefs), for Hoy Construction, Inc. and
Liberty Mutual Fire Insurance Co.
C. Allen Riggins (Parker, Pollard & Brown,
P.C., on briefs), for Howard Flenner.
Hoy Construction, Inc. and Liberty Mutual Fire Insurance Co.
(collectively employer) appeal an award of temporary total
disability benefits to Howard Flenner (claimant), upon his change
of condition application. Employer contends that the award is
barred by Code § 65.2-510 and, moreover, is unsupported by the
evidence. Claimant cross-appeals, complaining that the commission
erroneously construed Code § 65.2-510 to preclude temporary
partial disability compensation, following the award of temporary
total disability benefits. Agreeing both with the commission's
application of the statute and the award of benefits to claimant,
we affirm the decision.
Claimant suffered an industrial injury on September 2, 1995.
Employer accepted the resulting claim as compensable, and claimant
received temporary total disability benefits. On April 8, 1996,
Dr. David Biondi, a neurologist, released claimant to restricted
work, but claimant refused employer's offer of selective
employment, prompting employer to request the commission to
terminate benefits. On August 20, 1996, the commission granted
employer relief, effective April 12, 1996, noting that "claimant
conceded that he refused the selective employment due to physical
problems unrelated to the work injury" and had "offered no . . .
justification" for his conduct. Claimant did not appeal the
decision or cure such refusal within six months of April 12, 1996.
On May 7, 1997, claimant filed the instant application with
the commission, alleging a change of condition and seeking
temporary total disability benefits, commencing February 24, 1997,
through October 13, 1997, with temporary partial benefits
thereafter. Employer asserted Code § 65.2-510 1 as an absolute bar
1
Code § 65.2-510 provides, in pertinent part,
A. If an injured employee refuses
employment procured for him suitable to his
capacity, he shall only be entitled to the
benefits provided for in §§ 65.2-503
[permanent loss] and 65.2-603 [employer's
duty to furnish medical care], . . . during
the continuance of such refusal, unless in
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to relief and, also, challenged the claim on the merits. Claimant
countered that the statute was inapplicable both to a total
disability that occurred after an unjustified refusal of selective
employment and to a subsequent partial disability.
Following consideration of the record and arguments on
appeal, the commission determined that claimant had suffered a
temporary total disability after his unjustified refusal of
selective employment and awarded attendant benefits, reasoning
that the bar of Code § 65.2-510 is inapplicable to a subsequent
total disability. However, the commission further concluded that
the statute precluded benefits for any subsequent partial
disability and denied such claim. Both employer and claimant
appeal.
the opinion of the Commission such refusal
was justified.
* * * * * * *
C. A cure of unjustified refusal pursuant
to subsection A may not be established if
the unjustified refusal lasts more than six
months from the last day for which
compensation was paid before suspension
pursuant to this section; however, the
six-month period may be extended by the
number of days a claimant is totally
disabled if the disability commenced during
such six-month period. . . .
(Emphasis added.)
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I.
Employer's Appeal, Record No. 2152-99-1
While the instant appeal was pending in this Court, we
decided, in Southwest Virginia Tire, Inc., et al. v. Bryant, 31
Va. App. 655, 525 S.E.2d 563 (2000), that "Code § 65.2-510 does
not have any bearing upon a change-in-condition application for an
employee who becomes totally disabled as a result of the
industrial injury." Id. at 659, 525 S.E.2d at ___. Thus, the
commission correctly ruled that the statute does not bar the
disputed award, upon proof of a change in condition resulting in
temporary total disability, notwithstanding claimant's failure to
cure the earlier unjustified refusal of selective employment
within six months.
Employer, however, also contends that claimant's evidence
failed to prove a total disability for the period in issue.
"Following established principles, we review the evidence in the
light most favorable to the prevailing party." R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). "Factual findings of the commission that are supported by
credible evidence are conclusive and binding upon this Court on
appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131,
134, 428 S.E.2d 32, 34 (1993). "If there is evidence, or
reasonable inferences can be drawn from the evidence, to support
the Commission's findings, they will not be disturbed on review,
even though there is evidence in the record to support a contrary
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finding." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.
App. 276, 279, 348 S.E.2d 876, 877 (1986). "This rule applies
when an expert's opinion contains internal conflict." Greif
Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471
S.E.2d 803, 806 (1996).
In awarding claimant temporary total disability benefits,
the commission reviewed the deposition of Dr. Robert Hansen, a
neurologist, together with the related reports, notes and
correspondence of Dr. David Biondi and Dr. Kerri L. Wilkes, a
"headache specialist." While we concur in the commission's
observation that "it is difficult to determine Dr. Hansen's true
opinion about claimant's ability to work," we also agree that
sufficient evidence established a total disability for the
period.
On April 18, 1997, Dr. Hansen noted that claimant had
not been cleared to return to work. He has
been felt in the past, both by Dr. Biondi
and by myself, to have achieved maximal
medical improvement (MMI). . . . I think it
is appropriate . . . to have an FCE
[Functional Capacity Evaluation] performed.
Return to work recommendation can be
generated on the basis of the FCE.
Dr. Hansen further recorded, on April 30, 1997, that
claimant had
been followed . . . for some time with axial
pain and headaches. . . . The pain has been
very difficult to control. Recently, he has
had more pain and headaches . . . [and] was
deemed by me to be unable to return to work,
as of 2/24/97, because of the problems
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. . . . At the present time, [he] is not
able to return to work.
Following the FCE, Dr. Wilkes released claimant to work on July
3, 1997, and Dr. Hansen "deferred" to such recommendation.
Thus, despite a sometimes contradictory deposition by Dr.
Hansen, a review of the entire record provides sufficient
support for the commission's decision.
II.
Claimant's Appeal, Record No. 2229-99-1
It is uncontroverted that the commission previously
terminated claimant's original award of disability benefits,
effective April 12, 1996, upon a finding that he refused
selective employment without justification. Subject to certain
exceptions not pertinent to the instant proceedings, Code
§ 65.2-510(A) provides for the termination of benefits to an
"injured employee refus[ing] employment procured for him
suitable to his capacity." Code § 65.2-510(C) prevents an
injured employee from curing an unjustified refusal of selective
employment that "lasts more than six months from the last day
for which compensation was paid before suspension pursuant to
this section[.]" Thus, when claimant failed to cure his
unjustified refusal of selective employment on or before October
12, 1996, his right to cure and pursue reinstatement of partial
disability benefits was lost.
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Claimant's contention that Code § 65.2-510(C) does not
operate to bar the restoration of partial disability benefits
following an intervening period of compensable total disability
is without merit. The commission correctly applied Code
§ 65.2-510(C) to deny claimant renewed partial disability
benefits, reasoning that "an employee who did not cure an
unjustified refusal within six months forever loses the right to
additional temporary partial benefits . . . ." This result
comports with the "unambiguous, . . . plain meaning" of Code
§ 65.2-510(C), and we need not "resort to the rules of statutory
construction" to divine legislative intent. Last v. Virginia
State Bd. of Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205
(1992). Contrary to claimant's argument, the statute does not
exempt his "refusal for medical reasons" or establish
distinctions between degrees of partial incapacity.
Accordingly, we affirm the decision of the commission.
Affirmed.
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