Spanish
VIRGINIA: 01/07/2004
IN THE WORKERS’ COMPENSATION COMMISSION
MARIO BALDIVIESO, Claimant
Opinion by DIAMOND
Commissioner
v. VWC File No. 210-42-74
LABOR FINDERS OF VA., INC., Employer
AMERICAN CASUALTY CO., Insurer
Daniel P. Barrera, Esquire
1650 King Street, #505
Alexandria, Virginia 22314
for the claimant.
(Copy sent by Priority Mail)
Joshua M. Wulf, Esquire
6862 Elm Street, Suite 410
McLean, Virginia 22101
for the defendants.
(Copy sent by Priority Mail)
Review on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.
The employer requests Review of the deputy commissioner’s July 29, 2003, Opinion. The claimant alleged that he suffered an injury by accident on June 25, 2002, when he suffered a heat stroke at work. The deputy commissioner found that the injury arose out of the employment, and the employer appeals. The employer also appeals the deputy commissioner’s finding that the claimant was disabled. We AFFIRM.
We adopt the deputy commissioner’s summary of the relevant evidence and will not restate it here. Briefly, the claimant was working as a trash collector on June 25, 2002. Toward the end of the day, Kiki Gouveia, who was working with the claimant, noticed that “there was something wrong” with the claimant. Gouveia stated that the claimant “looked like he was disoriented, looking for things in his pocket and looking underneath the truck.” Gouveia stated that the claimant was slurring his speech and shaking. He called for help, and the claimant was taken for emergency treatment. The record showed that the claimant suffered brain damage related to heat stroke. He was in intensive care from June 25 to August 7, 2002, and stayed in the hospital until September 20, 2002. He then was transferred to the Loudoun Long Term Care Center, where he presently lives.
Gouveia testified that he drove the trash truck used by the two men on June 25, 2002. He stated that the claimant rode on the back of the truck, except that on occasion he rode in the cab. Gouveia stated that he did not run the air conditioning in the cab because it was his understanding that it caused the truck to overheat. Gouveia stated that it was 95 degrees on the day in question, and that it was “very stuffy and hot.” Other than a break in the middle of the day to dump the truck, at which point they also stopped at a store to buy lunch, Gouveia stated that the two did not take any breaks. He stated that he is paid a daily rate, and that the claimant’s services were provided by a temporary agency for his assistance. Gouveia stated that he “pushed to get my route” in order to finish as quickly as possible. Gouveia explained that the claimant placed the trash into the truck. If the claimant required assistance, Gouveia provided it. Gouveia estimated that he and the claimant had performed approximately 600 pickups when the claimant became ill.
Steve Barton, the operations manager for the route in question, testified that it was “extremely hot” on June 25, 2002. He estimated that the temperature was 95 degrees and stated that the humidity was “extremely high, too.” Barton stated that the claimant either went house to house on a sidewalk picking up trash, or rode on the back of the truck along the route, unless the distance was greater than one-half mile, when he would ride in the cab. Barton stated that there was a step on the back of the truck, and that it was not shaded. Barton stated that he reported to the scene of the accident after it was called in. He stated that the accident took place in “a new section of Leesburg. It’s wide open and not many trees around.” Climate data submitted by the parties showed that at Dulles International Airport, the high temperature on June 25, 2002, was 93 degrees, with a relative humidity level of 50% at 3:51 p.m. and 54% at 4:51 p.m., the approximate time of the accident.
The medical evidence showed that the claimant suffered “probable permanent brain damage from his heat stroke,” as noted by Dr. Richard Rosenthal on September 13, 2002. Dr. Rosenthal noted on June 25, 2002, that the claimant had been found next to his truck with a temperature of 109 degrees and no pulse. He was intubated and brought to the hospital, where he received “large volume resuscitation.” A CT scan showed a “small probable bleed in the temporal lobe on the left.” On September 6, 2002, Dr. Page Fletcher noted that the claimant had suffered “acute renal failure when admitted.” Dr. Fletcher diagnosed the claimant with “post-traumatic dementia secondary to the heat stroke.” He recommended discharge to long-term care “in a team approach to find the optimal setting of care for this man that is slowly improving.” He prescribed anti-dementia medication and noted that “any help in cognition will help him further perform the work of rehabilitation.”
On September 13, 2002, Dr. Rosenthal diagnosed the claimant with “probable permanent brain damage from his heat stroke.” Dr. Rosenthal further noted that the claimant was “Unable to perform daily chores associated with taking care of himself and his independent survival.” Records from Loudoun Long Term Care were minimal, but showed that the claimant receives occasional psychiatric consultation. On March 21, 2003, the claimant was diagnosed with “major depression assoc. with brain damage.” On April 11, 2003, the claimant was diagnosed with “dementia after heat stroke with depression.”
The deputy commissioner found that the claimant’s injury arose out of his employment. The employer argues that this was erroneous because the evidence did not show any extraordinary environmental conditions or work activities that would distinguish the claimant from any other outdoor worker on June 25, 2002. We agree with the deputy commissioner.
The claimant worked a long day on June 25, 2002, in temperatures that were very hot. The weather records from Dulles International Airport showed a high of 93 degrees, and the witness testimony showed that the temperatures and humidity on the claimant’s route made the weather “very stuffy and hot” and “extremely hot.” The claimant spent most of the day walking alongside the truck, picking up trash bags, or riding on the back of the truck between pickups. It is not speculative to conclude that the roadways used for the route were not shaded. As for the site of the accident, the evidence showed that it was a new development that was “wide open” and without tree cover. Finally, and importantly, the claimant’s temperature at the scene was noted to be 109 degrees, which obviously is not a condition commonly experienced by other outdoor workers.
The employer attributes the claimant’s injury to his decision to wear long-sleeves and multiple layers of clothing. There was no evidence, however, that the claimant’s attire contributed to his injury. To the contrary, it would be just as reasonable to conclude that long-sleeves were appropriate, given that the claimant worked in the sun. In conclusion, the evidence was clear that the claimant suffered a heat stroke on June 25, 2002, as a result of his employment. The injury was the result of working outside on a very hot day in summer, when the majority of his time was spent either walking alongside a trash truck, picking up and throwing trash into the truck, or riding on the back of the truck. Unlike other workers, he was not protected from the elements, and at the time of the accident, his body temperature was 109 degrees. Finally, Dr. Rosenthal noted on September 13, 2002, that the heat stroke was caused by his work and there was no reason for his heat stroke other than his work. We believe the deputy commissioner’s decision was correct.
The employer further argues that the deputy commissioner erred in awarding continuing total disability benefits as of the May 22, 2003, hearing, because the most recent opinion as to the claimant’s condition was Dr. Rosenthal’s September 13, 2002, assessment. The evidence showed that the claimant’s injuries were severe, causing “probable permanent brain damage” and resulting in his being confined to a long-term care facility. As recently as April 11, 2003, he was diagnosed with “dementia after heat stroke with depression.” While we agree with the employer that disability should not be presumed, we believe that the evidence showed that the claimant, who was hospitalized for approximately three months after the accident and was discharged, with diagnoses of brain damage and dementia, to long-term care, where he had lived for eight months at the time of the hearing, continued to be disabled. Moreover, the deputy commissioner noted his observation of the claimant at the hearing, which confirmed the claimant’s catastrophic injuries. We note that the Claim was not for permanent total disability, but for temporary total disability, and we agree with the deputy commissioner that the evidence showed that at the time of the hearing the claimant was totally disabled as a result of the accident.
For these reasons, the July 29, 2003, Opinion is AFFIRMED. Interest on the Award is payable pursuant to Code 65.2-707.
The attorney’s fee awarded to counsel for the claimant is increased to a total fee of $1,400.00, to be paid directly to counsel from accrued compensation.
This matter is removed from the Review docket.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.
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