Spanish
VIRGINIA: 03/22/2004
IN THE WORKERS’ COMPENSATION COMMISSION
JOSE GARCIA, Claimant
Opinion by the
COMMISSION
v. VWC File No. 212-98-78
D.L. MONGOLD CONSTRUCTION, Employer
WCAMC CONTRACTORS GROUP, Insurer
Daniel P. Barrera, Esquire
1650 King Street, #505
Alexandria, Virginia 22314
for the Claimant.
(Copy sent Priority Mail)
Frederick T. Schubert, Esquire
9030 Stony Point Parkway, Suite 160
Richmond, Virginia 23235
for the Defendants.
(Copy sent Priority Mail)
REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.
This case is before the Commission on the employer’s request for Review of the Deputy
Commissioner’s July 31, 2003, Opinion. The employer takes exception to the findings that this claim for injury by accident on January 7, 2003, is not barred by willful misconduct, and that the claimant is entitled to temporary total disability benefits from January 7, 2003, and continuing. We AFFIRM.
The claimant, who has a sixth grade education, testified through an interpreter that on January 7, 2003, he was working for the employer in a basement structure, helping to lift an iron beam. The claimant stated that the floor of the basement was icy and very slippery. There were approximately five people working on this task and they were being rushed because the concrete was going to be poured next. He testified that as they were lifting the structure, he tried to stand up and “all I know is that this thing was on top of me.” The claimant earlier testified that as they were trying to put up the structure, he slipped and the structure fell on his head.
The claimant also testified that at one point during the process of lifting the beam he was standing next to Victor Prieto. The claimant testified that he slipped while standing next to Mr. Prieto. Mr. Prieto tried to grab the claimant and pull him back but the beam was already on top of him. The claimant denied receiving any warning about staying away from the iron structure.
Eduardo Prieto, a carpenter, translator, and supervisor for the employer, testified that on January 7, 2003, six workers were present at the time that a 500-pound steel beam needed to be set at a house that was being constructed. He confirmed that there was a lot of ice in the house. Mr. Prieto stated that the beam was resting on concrete in the garage. He and Josh Jones moved the beam at first, sliding it into the basement. Mr. Prieto testified that he had never done this before and he had no experience with it. He discussed the task of dropping the beam into the basement with Jake Mongold, a foreman, and it was determined that the beam would be dropped because it was icy and the workers would need to “move away.”
Mr. Prieto testified that Jake advised the workers to move away in English, and Mr. Prieto then said, “move away” in Spanish. Mr. Prieto testified that the claimant did not move away at first, so he said a second time, “move away” because the beam was going to be dropped. His brother also repeated the warning. Mr. Prieto testified that on the second warning, the claimant moved against the wall close to Mr. Prieto and his brother. The beam was going to be dropped on the count of three. Mr. Prieto testified that he did not translate the count for the claimant or for his brother.
Mr. Prieto testified that the floor in the basement was wet but not slippery. He also testified that there was ice in the basement. He did not see the claimant slip. He heard Darrell Day say, “watch out” but that is all he remembers. Mr. Prieto did not hear the claimant say anything. He did not see the beam fall on the claimant or how it happened because he was looking away when Jake Mongold started the count.
Darryl Day, a carpenter for the employer, testified that a beam is rarely dropped into a basement the way it was on January 7, 2003; however, because of the weather Jake Mongold felt it was safer. Mr. Day testified that on the morning of January 7, 2003, one end of the beam was slid into the basement and hit on the concrete slab, and the other end was being dropped into the basement. Mr. Day understood that there was going to be a count of three by Jake or Josh before the beam was dropped, and that Eduardo was going to tell the Spanish-speaking individuals what was going to happen. Mr. Day saw Eduardo speak to them but he does not know what was said, as he does not speak Spanish. After this discussion, Mr. Day observed the Spanish-speaking workers standing about five or six feet away from the beam. He also saw the claimant take two steps toward the beam at the end of the count and bend his head to go under the beam. Mr. Day testified that the beam was dropped and hit the claimant in the back of the head. He did not see the claimant slip.
Mr. Day admitted that in his deposition, he testified that he did not see the claimant take any steps, that all he saw was the claimant going underneath the beam and he yelled for him to stop. At one point during the hearing Mr. Day testified that he saw the claimant take two steps, and at another point he testified that he saw the claimant take two steps.
Joshua Jones, a carpenter with the employer, testified that Jake Mongold discussed various methods of dropping the fifteen-foot beam, and decided to get it to the corner of a wall and then drop it in the basement so they would pick it up and set it. Mr. Jones testified that Jake ensured that Eduardo would translate the procedure for everyone. Mr. Jones was assigned to drop the beam. He saw the claimant and three or four other workers standing about five or six feet away in a cubbyhole of the house. Mr. Jones counted to three in a loud voice to make sure everyone heard and focused his attention on the task at hand. By the time Mr. Jones heard Mr. Day yell, “watch it,” it was too late to stop the beam from dropping. Mr. Jones had never dropped a beam before.
To successfully raise a defense of willful misconduct, the employer must establish (1) that the safety rule [or other duty] was reasonable, (2) that the rule was known to [the employee], (3) that the rule was for [the employee's] benefit, and (4) that [the employee] intentionally undertook the forbidden act. Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989). Upon consideration of the evidence in the case at bar and the applicable law, we conclude that the Deputy Commissioner did not err in finding that the employer failed to prove misconduct.
The employees were working in an icy basement, attempting to drop a fifteen-foot, five hundred-pound steel beam. The testimony of the witnesses establishes that the employees had no experience with this particular procedure. The only “rule” posited in this case is that the employees were told to “move away” from the beam. The evidence shows that the claimant heeded this warning and moved to the wall next to Mr. Prieto. The count was not translated into Spanish, and it is not clear exactly what happened to place the claimant in a position of being hit by the beam. Mr. Prieto did not see what happened, Mr. Day’s testimony is contradictory, and Mr. Jones was paying attention to his task of dropping the beam. The claimant testified several times that he slipped. All the witnesses agreed that the basement was icy. Under these circumstances, we cannot find that the claimant intentionally violated a rule. We find his accident compensable and AFFIRM this finding.
Turning to the issue of disability, the employer argues on Review that the Deputy Commissioner erred in relying on the evidence provided by the claimant’s chiropractor, Dr. Kevin Reiman. We disagree.
The medical record reveals that the claimant was initially treated at Inova Fairfax Hospital for multiple injuries including fractures of the transverse processes of the lumbar vertebrae. The claimant was seen at the hospital by Dr. Aldo M. Rosemblat, a neurosurgeon, who determined that the claimant did not need surgery.
Following his discharge from the hospital, the claimant returned to Dr. Rosemblat on January 16, 2003, complaining of severe low back pain. Dr. Rosemblat prescribed physical therapy and medication and ordered an MRI. He opined that the claimant was totally disabled and that his injuries would take 90 to 120 days to heal and allow a return to work. Dr. Rosemblat completed a form indicating that the anticipated date of return to work was April 7, 2003.
The claimant was instructed to return to Dr. Rosemblat on February 6, 2003. However, the claimant did not return to Dr. Rosemblat and instead began extensive therapy under the care of Dr. Reiman beginning March 17, 2003. Dr. Reiman has issued work status notes excusing the claimant from work through July 7, 2003, which is beyond the date of the hearing.
We also have a report from Dr. Leo B. Van Herpe, an orthopedist, issued on June 18, 2003. Dr. Van Herpe examined the claimant and reviewed his medical records at the request of the employer. Dr. Van Herpe reported that the claimant sustained a small laceration of the liver and fractures of the transverse processes of L2, L3, and L4, as a result of the accident. He took x-rays which showed that the fractures have healed. Dr. Van Herpe opined that there is no reason that he cannot return to work without restrictions and that the claimant’s complaints are out of proportion to his injuries. Dr. Van Herpe also noted that the claimant was voicing some abdominal complaints, and he recommended further work-up to determine if the liver injury was the cause. He did not believe that the abdominal problem was disabling.
Based on the evidence presented, we agree the claimant has proven an ongoing disability. It is well established that the Commission generally defers to the opinion of the treating physician over the contrary opinion of a non-treating independent medical examiner hired by the employer for a single examination. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986); Gourzis v. Mitre Corporation, VWC File No. 161-27-08 (April 18, 1996).
The Opinion below is AFFIRMED.
Interest is payable on the Award pursuant to Code 65.2-707. The attorney’s fee awarded in the July 31, 2003, Opinion is increased to a total fee of $1,500.00, which shall be paid directly to counsel for the claimant out of accrued compensation.
This matter is hereby removed from the Review docket.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.
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