Clinton Felton Jefferson v. Servitex, Inc.

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued by teleconference
CLINTON FELTON JEFFERSON
MEMORANDUM OPINION* BY
v. Record No. 2318-01-3 JUDGE G. STEVEN AGEE
APRIL 16, 2002
SERVITEX, INC. AND
HARTFORD CASUALTY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Stephen G. Bass (Carter, Craig, Bass, Blair
& Kushner, P.C., on briefs), for appellant.
Richard D. Lucas (Lucas & Associates, on
brief), for appellees.
Clinton Felton Jefferson (the claimant) appeals the
decision of the Workers' Compensation Commission (the
commission) denying his claim for disability benefits from
Servitex and its insurer, Hartford Casualty Insurance Company,
(herein, collectively, referred to as "the employer"). He
contends the commission erred in finding that he failed to
reasonably market his residual work capacity. Pursuant to Rule
5A:21(d), the employer raises the additional questions of
whether (1) the commission erred in finding the claimant's
injury arose out of his employment and (2) the claimant was
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
entitled to temporary total disability benefits for September
12-26, 2000. Upon review, we affirm the commission's decision.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
The claimant worked as a route salesman for the employer.
His job duties included the delivery of laundered linens to
clients and the pick-up of the client's soiled linens. On April
13, 2000, the claimant backed his delivery vehicle up to a
client's loading dock which was two and one-half to three feet
above the bed of the vehicle.
The claimant went through the building to open the loading
dock door. As was his normal practice, he then stepped down
backwards from the loading dock into the bed of the vehicle.
His left knee gave and, as he tried to recover, his left leg
gave out causing the claimant to fall backwards. He did not
slip or trip.
After a few minutes of lying on the vehicle bed's floor,
the claimant rose and attempted unsuccessfully to work.
Dr. Campbell treated the claimant that day and informed him
that he had arthritis in his left knee. The examination
reflected degenerative changes in the knee with a history of
gout. The physician recommended the claimant not work for a few
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days. On April 21, 2000, Dr. Campbell examined the claimant
again and released him to return to regular work.
From April 21, 2000, through late August 2000, the
claimant, suffering pain in his left knee, continued treatment
with Dr. Campbell. He worked his regular job during that period
of time, except for three days.
On September 12, 2000, Dr. Campbell saw the claimant who
complained of knee pain and walked with a stiff gait. An MRI
revealed a partial MCL tear. The physician provided claimant
with a leave slip that read, "this is to certify that [the
claimant] is physically unable to return to work from Sept. 1,
00 until next appt. Next appointment-Sept. 27, 00 @ 10:00." On
September 27, 2000, the claimant was placed on light duty
restrictions, but the employer did not have a light duty
position for him.
The claimant did not seek subsequent employment prior to
December 14, 2000. Between December 14, 2000, and January 3,
2001, he contacted nine companies, which employed friends or
acquaintances, but none of the nine companies were hiring.
Claimant began to make these contacts after filing for benefits
with the Virginia Employment Commission, which requires benefit
recipients to contact at least two potential employers per week.
No other efforts to find employment were made by the claimant.
The claimant testified that he was unaware that he was required
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to seek employment in order to be entitled to workers'
compensation benefits.
In addition to the testimony of the claimant and a
representative for the employer, the deputy commissioner
reviewed Dr. Campbell's submitted responses to questionnaires
provided to him from each party. On the questionnaire from the
claimant, the physician indicated his agreement to the following
statement:
It is my opinion with a reasonable degree of
medical certainty or probability that the
incident, described by [the claimant] as
occurring on April 13, 2000[,] and in which
he twisted his left knee at work stepping
down from a loading dock to the rear of a
truck, aggravated his pre-existing arthritis
and caused a strain of his medical [sic]
collateral ligament.
On the questionnaire from the employer, the physician indicated
his agreement with this statement:
[Y]ou did not believe [the claimant] was
totally disabled but was capable of doing
light duty work, including sedentary work,
and that you have never told [the claimant]
that he was totally disabled from all
employment.
The deputy commissioner found the claimant had suffered a
compensable injury arising out of and in the course of his
employment; that he was entitled to temporary total disability
benefits for the period September 12-26, 2000; he was not
entitled to benefits for the period September 27, 2000, through
December 13, 2000, due to his failure to market his residual
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work capacity; and that he was entitled to benefits, commencing
December 14, 2000, through January 4, 2001, for reasonably
marketing his remaining work capacity.
Upon review, the full commission found the claimant had
proven that he suffered a compensable injury; was entitled to
temporary total disability benefits for the period September
12-26, 2000; and that the claimant failed to market his residual
work capacity commencing December 14, 2000.
Both parties now challenge the award in different respects.
II. A COMPENSABLE INJURY
We begin our review with the employer's contention that the
commission erred in finding the claimant suffered a compensable
injury arising out of his employment. It argues the claimant is
not entitled to benefits because he failed to meet his burden of
proving the injury he suffered was due to a risk of employment.
For the following reasons, we affirm the commission's decision.
"In order to recover on a workers' compensation claim, a
claimant must prove: (1) an injury by accident, (2) arising out
of and (3) in the course of his employment." Kane Plumbing,
Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988);
see Code § 65.2-101. "The phrase arising 'in the course of'
refers to the time, place, and circumstances under which the
accident occurred," while "arising 'out of' refers to the origin
or cause of the injury." County of Chesterfield v. Johnson, 237
Va. 180, 183, 376 S.E.2d 73, 74 (1989).
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"The mere happening of an accident at the workplace, not
caused by any work related risk or significant work related
exertion, is not compensable." Plumb Rite Plumbing Serv. v.
Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). A
claimant must establish "that the conditions of the workplace or
. . . some significant work related exertion caused the injury."
Id. Thus, "the arising out of test excludes 'an injury which
comes from a hazard to which the employee would have been
equally exposed apart from the employment. The causative danger
must be peculiar to the work, incidental to the character of the
business, and not independent of the master-servant
relationship.'" Johnson, 237 Va. at 183-84, 376 S.E.2d at 75
(quoting United Parcel Service v. Fetterman, 230 Va. 257,
258-59, 336 S.E.2d 892, 893 (1985)).
"The actual determination of causation is a factual finding
that will not be disturbed on appeal," if supported by credible
evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688,
376 S.E.2d 814, 817 (1989); see Code § 65.2-706. However,
"[w]hether an injury arises out of and in the course of
employment is a mixed question of law and fact . . . ,
reviewable upon appeal." Jones v. Colonial Williamsburg Found.,
8 Va. App. 432, 434, 382 S.E.2d 300, 301 (1989).
The claimant's testimony constitutes credible evidence to
support the commission's factual findings. The claimant stated
that when he stepped down from the loading dock, which was two
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and one-half to three feet higher than the bed of the truck,
into the bed of the truck his left knee went out from under him
and he fell backwards. The claimant was not simply walking,
bending or turning when his knee gave way. Rather, the
commission could reasonably infer from the evidence that
claimant's employment-related need to get into the bed of the
truck resulted in his knee injury. "Where reasonable inferences
may be drawn from the evidence in support of the commission's
factual findings, they will not be disturbed by this Court on
appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404,
374 S.E.2d 695, 698 (1988). Here, the evidence supported an
inference that the conditions of employment either caused or
contributed to the claimant's injury.
The commission's factual findings are supported by the
record and properly establish an injurious activity arising from
a work-related risk, compensable under the Act. Compare
Southside Va. Training Center/Com. v. Ellis, 33 Va. App. 824,
829, 537 S.E.2d 35, 37 (2000) (denying compensation resulting
from "bending to pick up a tray," a movement "neither unusual,
awkward, nor something that employee was required to do on a
repetitive basis"), with Richard E. Brown, Inc. v. Caporaletti,
12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991) (finding
"cutting and fitting" motions of employee, while leaning over
during installation of a furnace, a condition of employment with
attendant risk of injury).
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Accordingly, the evidence supports the commission's
determination that the claimant's injury arose out of his
employment, and we affirm the related award.
III. TEMPORARY TOTAL DISABILITY BENEFITS
The employer contends the commission erred in finding the
claimant was entitled to temporary total disability benefits for
the period September 12-26, 2000. Finding the commission's
decision supported by the evidence, we disagree.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). On
this particular contention, the claimant prevailed before the
commission, and we review the evidence in the light most
favorable to him. Factual findings made by the commission will
be upheld on appeal if supported by credible evidence, even if
there is evidence in the record to support a contrary finding.
Russell Stover Candies v. Alexander, 30 Va. App. 812, 825, 520
S.E.2d 404, 411 (1999). We will "not retry the facts, reweigh
the preponderance of the evidence, or make [our] 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). Consequently, where the commission resolves a conflict
in medical evidence, on appeal the medical issue will not be
"settled by judicial fiat," and the commission's decision is
binding so long as it is supported by credible evidence.
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Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872,
874 (1992). "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 support of its argument that the claimant is not
entitled to temporary total disability benefits, the employer
contends the physician's agreement with its submitted partial
statement, "you have never told [the claimant] that he was
totally disabled from all employment," belies an award of
benefits for temporary total disability benefits. We disagree.
In awarding claimant temporary total disability benefits
for the period of September 12-26, 2000, the commission found as
follows:
[T]he December 27, 2000, affirmation is
contradicted by the September 12, 2000,
disability slip that Dr. Campbell signed
after examining the claimant that day. The
September 12, 2000, disability slip is
consistent with the treatment notes, which
reflect that his condition has "become more
symptomatic." It is also contemporaneous
with the period in question. Therefore, we
agree with the [deputy commissioner's]
finding that the claimant was temporarily
and totally disabled from September 12
through September 26, 2000.
The commission's factual findings are supported by credible
evidence, including the medical records, leave slip and
claimant's testimony. Based upon that evidence, the commission
could reasonably conclude that claimant was temporarily and
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totally disabled from September 12, 2000, through September 26,
2000.
IV. THE FAILURE TO MARKET RESIDUAL CAPACITY
The claimant contends the commission erred in finding that
he did not reasonably market his residual work capacity between
December 14, 2000, and January 4, 2001. We disagree.
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 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).
Failure of a partially disabled employee to satisfy the
duty to make reasonable efforts to market residual work capacity
results in a temporary suspension of benefits. Great Atl. &
Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100
(1987). "It is not required that a workers' compensation
claimant who suffers partial disability be informed by her
physician that [he or] she may undertake restricted work in
order for her to be obligated to make reasonable efforts to
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market her residual skills." Ridenhour v. City of Newport News,
12 Va. App. 415, 416, 404 S.E.2d 89, 89 (1991). The claimant is
required to make reasonable efforts to market his or her
remaining work capacity when under all the facts and
circumstances, the claimant should reasonably and objectively
perceive that he or she can return to gainful employment. See
id. at 418, 404 S.E.2d at 90; Bateman, 4 Va. App. at 467, 359
S.E.2d at 102.
The claimant contacted nine potential employers between
December 14, 2000, and January 3, 2001. The only reason the
nine were contacted was because the Virginia Employment
Commission, from which the claimant sought unemployment
benefits, required he contact at least two employers per week.
All nine were employers he knew personally, and none of these
were hiring. The claimant did not fill out any employment
applications. There is no evidence that he sought employment
elsewhere, that he approached potential employers with actual
job openings, or that he even looked into job listings in a
newspaper or other readily available resource.
The commission found that the claimant's efforts were not
reasonable. Credible evidence, i.e., the claimant's testimony
and his minimal list of contacts, supports the commission's
finding. Therefore, the commission's decision will not be
disturbed on appeal.
Affirmed.
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