Wrongful death is a death caused by another person’s recklessness, negligence, malpractice, or conscious disregard for another’s well being. A person killed in a construction accident, by a drunk driver, or due to medical malpractice, is the victim of wrongful death. Importantly, wrongful death law suits are civil, not criminal, charges, they are meant to help families recover damages for the pain and hardship they must endure due to the loss of a loved one.

State laws concerning lawful death vary, but in all states the close relatives of the deceased, such as spouses, children, and parents can file lawsuits for wrongful death.  If children are minors, they will usually need to file the lawsuit through a legal guardian, called a guardian ad litem. Sometimes, more extended family such as step-family, grandparents, and dependents may also be permitted to file for wrongful death.

Wrongful death cases fall under a statute of limitations, meaning that the lawsuit must be filed within a certain period of time from the event of death. Wrongful death cases in Virginia must be filed within two years of the date of death. Wrongful death cases in Washington, D.C. must be filed one year from the date of death. Wrongful death cases in Maryland must be filed within three years from the date of death.  Where the case will be tried depends on several factors that must be considered by an attorney, so it is best to first contact an attorney in the general area where the death occurred.

At the Barrera Law Firm, we have tried wrongful death cases in Virginia, Maryland, and D.C. with great success. It takes experience and empathy to deal with these cases adequately. If you need to file a wrongful death case, or have legal questions concerning a loved one’s wrongful death, do not hesitate to contact the law offices of Daniel Barrera today.

Wrongful death cases are always difficult for all parties involved. Alongside difficult emotional distress comes the need to deal with complex legal matters that can make these types of cases more painful and depressing than they need to be. I have dealt with many of these types of cases, and as a lawyer I try to make them as painless as possible for the parties involved, making sure that adequate compensation is awarded to the grieving loved ones of the deceased.

Listed below are the types of damages that can be awarded in cases of wrongful death. In other words, the costs incurred due to a wrongful death may be compensated if they are:

• Medical and funeral expenses associated with the death
• Loss of earnings between time of death and expected retirement or death
• Loss of benefits such as pension, medical coverage, etc.
• Loss of inheritance
• Compensation for mental anguish and suffering of the grieving survivors
• Loss of care, protection, and support for the survivors
• Punitive damages for willful or wanton conduct, such as recklessness or a conscious disregard for the safety of others.

To decide the amount of damages, the jury will consider many things such as earning history, health, spending habits, character, lifestyle, etc. These calculations are incredibly complex and require an expert witness. I usually hire an economist who can examine a case full circle and develop a reasoned estimate of the damages. Professional economists are able to take into account not only the income and wages lost, but as well the costs for care of the survivors, such as a family of young children, as well as other essential though often overlooked costs associated with wrongful death.

As I said, wrongful death cases are always difficult for the survivors – having dealt with many of these cases and as many grieving families, I know how to meet the needs and wishes of the family and survivors.  If you or a loved one are the victim of a wrongful death incident, do not hesitate to contact the Barrera Law Firm to schedule a free consultation. If you have any questions at all, please feel free to contact us today.

Below are a list of the most popular types of cases that are handled by the Barrera Law Firm in Virginia and the statutes of limitations pertaining to them:

Wrongful Death – a wrongful death claim must be filed within two years of the date of death.

Personal Injury – a personal injury lawsuit must be filed within two years of the date of injury.

Medical Malpractice – lawsuits against health-care providers must be filed within two years of the date of the act that gave rise to the claimed injury. If a minor is victim to medical malpractice and is under the age of 8, he has until his 10^th birthday to file suit.

Product Liability – lawsuits must be filed within two years after the victim suffers the injury.

Minors under the age of 18 are a special case and sometimes the statute of limitations apply in unique ways that can only be understood and put to use by a skilled legal representative.

It would be a shame and perhaps a grave error to miss out on filing a case before its statute of limitations ends. If you are unsure whether your case has potential to be tried due to the statute of limitations, do not hesitate to contact the Barrera Law Firm today – we can get your case filed and tried in a timely manner so that you can receive the compensation you deserve.

Below are a list of the most popular types of cases that are handled by the Barrera Law Firm in Maryland and the statutes of limitations pertaining to them:

Wrongful Death – a wrongful death claim must be filed within three years of the date of death. If the wrongful death was caused by any toxic substance in the deceased’s workplace, during in the course of employment, the suit may be filed up to ten years from the date of death, or within 3 years of the date when the cause of death was discovered, whichever is shorter.

Personal Injury – a personal injury lawsuit must be filed within three years of the date of injury.

Medical Malpractice – lawsuits against health-care providers must be filed within five years of the date that the act giving rise to the claimed injury. If a minor is victim to medical malpractice and is under the age of 11, he has until his 16^th birthday to file suit.

Product Liability – lawsuits must be filed within three years after the victim suffers the injury.

Minors under the age of 18 are a special case and sometimes the statute of limitations apply in unique ways that can only be circumvented or taken advantage of by a skillful legal representative.

It would be a shame and perhaps a grave error to miss out on filing a case before its statute of limitations ends. If you are unsure whether your case has potential to be tried due to the statute of limitations, do not hesitate to contact the Barrera Law Firm today – we can get your case filed and tried in a timely manner so that you can receive the compensation you deserve.

For most states, paydays are either biweekly or semimonthly. Biweekly payroll involves paydays that occur 26 times per year, such as every other Friday. Semimonthly payroll refers to paydays that occur 24 times per year, such as paydays that occur on the 15th day and the last day of every month.

In the District of Columbia, employees are supposed to be paid semi-monthly

In Maryland employees are supposed to be paid biweekly.

In Virginia this law is complicated. Depending on their profession, employees may be paid monthly, biweekly, or semimonthly. Employees whose weekly wages total more than 150 percent of the average weekly wage of the Commonwealth may be paid monthly, only upon agreement of each affected employee. Executive, administrative, and professional personnel must be paid at least monthly. For most employees however, payday should occur at least 2 times a month, either every other Friday, or, the 15th and last day of every month.

If you are only being paid once a month, and you never signed anything allowing your employer to pay you so infrequently, you might be in need of legal assistance and workers compensation. Most importantly, you must know your rights they are your best tools against injustice. If you need a lawyer who is accomplished in workers compensation law in D.C., Maryland, and Virginia, do not hesitate to contact the Barrera law firm today.

There are and infinite number of reasons why an accident may occur but the sheer size and weight of trucks makes them particularly prone to grave accidents. Many accidents occur due to unnecessary negligence on part of the driver. For example:

• Drivers often rush to meet strict delivery deadlines. Unrealistic delivery schedules cause drivers to disobey speed limits and other rules of the road.
• Driving for long periods drivers get tired and become unable to maintain attention and control. Drivers are required to take breaks from driving on the road. Research confirms that 28% of tractor-trailer drivers suffer from sleep apnea. Driving fatigue makes truck drivers literally fall asleep at the wheel. Violation of the required rest requirements is a common accident cause of accidents, and willful violations can support a claim for punitive damages against the truck driver and his company. However, to properly prove that driver fatigue was a causative factor in your accident, you must secure the driver’s trip logs and all supporting documents immediately after the accident.
• A combination of the above two reasons can lead to a driver that is stressed and tired, unable to pay enough attention to other drivers and the road.
• It is difficult to see blind spots from a large truck. Truck drivers might not leave enough space for his giant vehicle between other vehicles. Being in such a large vehicle can make it impossible to stay aware of the intricacies of the road and traffic. Truck drivers must be particularly aware of their surroundings and extra qualified to operate and control such an immense vehicle.
• A larger machine means larger mechanical components. Mechanical failure and defective components are common, especially in rental and overused trucks. This poses a serious threat to everyone on the road.
• Overloading of the truck occurs when companies try to cut corners and over-ship, creating a dangerous transportation route.

Truck accident cases tend to be more complex and proving negligence can be difficult due to all the intricacies of transportation and commercial law. If you have been involved in a truck accident, you should contact legal assistance immediately, as these types of claims must be filed as close to the accident date as possible. The Barrera Law Firm successfully files truck accident cases frequently, If you are in search of experienced legal counsel in D.C., Virginia, or Maryland, contact us today!

Here are some facts to consider if you are a worker at risk for burn injury:

Did you know…

• The majority of people hospitalized for workplace scald and contact burns are involved in food preparation.
• Teenagers employed in fast food restaurants as fry cooks are at special risk for burn injuries. During busy periods, inexperience and the pressure of “keeping up” can result in burn injuries.
• In Deep Frying, hot oil can reach temperatures of 300° to 500°F, making this task a potential high risk for burns and personal injuries.

Burns usually occur when:

• Work site management has not enforced safety rules
• Workers or employers ignore safety rules
• Shortcuts are taken or workers are time-pressured
• Persons become too familiar with their job and take unnecessary risks
• Workers are ill, tired or compromised by drugs or alcohol and unable to concentrate.

Workplace burn injuries result from contact with:

• Hot liquids and steam
• Hot oil and grease
• Hot substances such as food or sauces
• Hot surfaces – stoves, grills, ovens
• Fires from hot grease or oil
• Exposed electrical wires or improperly maintained electrical appliances or equipment.

What can you do to protect yourself?

• Wear protective gloves or mitts when handling hot pots or cooking with hot deep-frying oil.
• Wear non-skid shoes to prevent slipping on wet or greasy tile floors.
• Extinguish hot oil/grease fires by sliding a lid over the top of the container. · Never carry or move oil containers when the oil is hot or on fire.
• Avoid reaching over or across hot surfaces and burners. Use barriers, guards or enclosures to prevent contact with hot surfaces.
• Read and follow directions for proper use of electrical appliances
  

(Source: Burn Foundation www.burnfoundation.org)

In addition to tremendous pain and suffering burn injuries can result in large losses of time and money put towards medical attention. Your job occupation should never involve routine risk or pain. If injured you should get treatment immediately. If your employer is unwilling to acknowledge or provide treatment for your injuries, you are in need of a lawyer who can make sure you receive adequate treatment and workers compensation. Every worker has the right to a safe workplace. Know and defend your rights, call our office today!

The danger of old tires has been known since at least September 2003 when the British-based Tyre Industry Council issued an unprecedented warning that previously unused tires should not be sold if they were more than 6 years old, and that all tires should be replaced 10 years after their manufacture.

It is curious that European and Japanese automobile manufacturers warn of this danger but NOT U.S. tire manufacturers. For example the Volkswagen manual states “WARNING – old tires can fail in use, causing loss of vehicle control and personal injury. Replace tires after 6 years regardless of tread wear.”

If the U.S. tire industry is refusing to give you the same warnings that are given to car owners in Europe and Asia, how can you protect yourself?

The answer is that cryptic bunch of numbers on the tire sidewall. The last 4 numbers at the end of the 12-digit DOT serial number will tell you when you tire was manufactured. But you need to know the 4-digit code and until recently the DOT serial number was located on the inside of the tire requiring you to crwal under the car to read the number. Here’s the code — the first 2 numbers are the week of manufacture and the last 2 numbers are the year of manufacture. For example: 1404 means that the tire was made the 14th week of 2004, or mid-April of that year. If the last group of digits has only 3 numbers then your tire was made before 2000. “219″ means the tire was made the 21st week of 1999.

Before you buy that next set of tires be sure to check the last 4 digits of the DOT serial number, and to be safe right now check any tires you currently have in service on your vehicle. If they are more than 6 years old, replacement may be in order. Aged tires can separate without warning and cause catastrophic results.

Yes it is curious that something as important as tire safety would require you to get on your hands and knees and know the secret code but until better regulations are in place this is the only way you can be sure that you and your family are safe riding on those tires.

IN THE WORKERS COMPENSATION COMMISSION

FRANCISCO GABRIEL RAMIREZ-GUTIERREZ, Claimant

Opinion by DUDLEY

Commissioner

v.                                                                                                                               VWC File No. 227-72-99

CLEAN SCAPE, INC., Employer

- NO RECORD OF INSURANCE -

Daniel P. Barrera, Esquire

The Chandler Law Group

1650 King Street

Suite 505

Alexandria, VA  22314

for the Claimant.

Arturo H. Hernandez, Esquire

Arturo H. Hernandez, P.C.

2915 Hunter Mill Road

Suite 18

Vienna, VA  22124-1716

for the Employer.

Douglas A. Seymour, Esquire

Siciliano, Ellis, Dyer and Boccarosse, P.L.C.

10521 Judicial Drive

Suite 300

Fairfax, VA  22030

for the Uninsured Employers’ Fund.

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 November 9, 2006, Opinion.  The employer assigns error to the findings that the claimant sustained a compensable injury by accident and that it had more than three employees and failed to obtain workers’ compensation insurance.  The Uninsured Employers’ Fund asserts that the Deputy Commissioner erred in finding ongoing disability.  Finding no error, we affirm.

The facts of this case are not in dispute.  The Deputy Commissioner accurately summarized the evidence, and we will repeat it only as necessary in this Opinion.  Initially, we note that all parties agree that the claimant is an undocumented alien.

The evidence shows that on January 12, 2006, the claimant was working at a private residence on an incomplete deck.  He stepped on a board that was not attached, and it swung up and hit him in the back of his head.  The claimant fell from the deck onto the concrete below, sustaining injuries to his head, shoulder, chest, hip, and hand.  He was taken to the emergency room, and received stitches and initial treatment for his other injuries.  The claimant was referred to Dr. Christopher L. Hess, orthopedic surgeon, for his hand injury.

On March 9, 2006, Dr. Hess performed surgery on the claimant, and recommended another surgery, which has not been performed.  The doctor last treated him on September 29, 2006, and he has not worked since January 12, 2006.  The claimant admitted at the Hearing that he was physically capable of some types of work, but that he was an undocumented alien without a vehicle or driver’s license.

The claimant testified that he worked for the employer in 2003, and then again in 2005, and that Gerardo Gutierrez-Oriza, the owner, agreed to pay him $10 per hour to work 50 hours per week.  He wore a red t-shirt like the other employees wore, which bore the company name, and Gutierrez-Oriza provided the tools and sent him to the worksites.  The claimant listed the following workers:  Gerardo Gutierrez-Oriza, Carlos Dolesky (his supervisor), Angela Gutierrez, Gregorio Mesa, Florencio Romero, Lilan Matamoros, and Isabel Avellaneda.  The claimant also stated that the company provided cleaning services to an elementary school and used approximately ten other employees for that location.

Angela Gutierrez, secretary, testified that the employer had less than three full-time employees, and that Dolesky was an independent contractor.  Gutierrez stated that most of the other individuals identified by the claimant were either day laborers that would come and go, or part-time employees.  She said that she and her husband were officers of the corporation, and that this information was consistent with the Answers to Interrogatories and information from the Insurance Department of the Virginia Workers’ Compensation Commission printed from the State Corporation Commission database.

After careful Review, we find no error and affirm the Deputy Commissioner’s decision.  The evidence is uncontroverted that the claimant was working and performing the tasks of his employment at the time of his injury.

To recover benefits, the claimant must establish by a preponderance of the evidence that he suffered an injury by accident arising out of and in the course of [his] employment, Code 65.2-101, and that the conditions of the workplace . . . caused the injury.  Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).

Falls Church Const. Corp. v. Valle, 21 Va. App. 351, 359-60, 464 S.E.2d 517, 522 (1995).  Accordingly, we find that on January 12, 2006, the claimant sustained a compensable injury by accident to his head, shoulder, chest, hip, and hand.

Next, we agree that the employer clearly had three or more employees, and is subject to the provisions of the Virginia Workers’ Compensation Act (Act).

[W]hen an employer defends a claim on the ground that it is not subject to the provisions of the Act, the commission must make two distinct inquiries.  First, the commission must determine whether the employer carried its burden of proving, by a preponderance of the evidence, that, at the time of the alleged incident, it had regularly in service fewer than three employees in Virginia.  Second, if the employer sustains this burden of proof, the commission must then determine whether, at the time of the alleged incident, the employer’s established mode of performing business regularly required three or more employees. If so, the employer will be deemed subject to the provisions of the Act even though it had fewer than three employees on the date of the alleged incident.

Perry v. Delisle, 46 Va. App. 57, 65, 615 S.E.2d 492, 496 (2005).

Here, the employer failed the first prong of the test.  Corporate officers are employees, whether they are paid or not.  The record shows that, in addition to Gerardo Gutierrez-Oriza and Angela Gutierrez, Carl Pfeifer and Janaan Manternach were also listed as officers.  The claimant was an employee, as well as several of his co-workers and the workers employed to clean the elementary school.  The employer failed to prove that these individuals were not its employees, and it also failed to obtain workers’ compensation insurance as required by Virginia Code 65.2-801, Code  65.2-802, and  65.2-804.

Virginia Code  65.2-805 provides that if any employer fails to comply with the provisions of Code  65.2-800 or  65.2-804, it shall be assessed a civil penalty of not less than $500, nor more than $5,000.  The Deputy Commissioner assessed a penalty of $5,000 for the employer’s failure to comply, and we find that to be a reasonable penalty.

Finally, a review of the available medical evidence shows that Dr. Hess provided the claimant with an out-of-work slip on September 29, 2006.  The doctor recommended a second surgery and stated that he was currently unable to work.  There is no further medical information in the file.  The claimant has been unable to obtain further treatment due to a lack of funds and other health insurance.  We agree that disability does not continue indefinitely without ongoing medical treatment.

There is no presumption in the law that once a disability has been established, a claimant will be assumed to remain disabled for an indefinite period of time.  To the contrary, a party seeking compensation bears the burden of proving his disability and the periods of that disability.  Marshall Erdman & Assocs., Inc. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997).

Uninsured Employer’s Fund v. Clark, 26 Va. App. 277, 285-86, 494 S.E.2d 474, 478 (1998).  However, in the instant case, the treating physician has recommended surgery, which due to litigation, has not been approved.  The claimant may think that he can perform some types of work, but there is no medical support for his belief.  Without medical evidence that he can perform the work that he thinks he can perform, we decline to agree that he can work.  Further, we decline to penalize the claimant for his inability to obtain surgery that may place him on the road to a return to work.

Accordingly, the Opinion of the Deputy Commissioner is AFFIRMED.

Interest is payable on the award pursuant to Virginia Code  65.2-707.

The attorney’s fee to be deducted from accrued compensation and paid to Daniel P. Barrera, Esquire, for legal services rendered the claimant, is hereby increased to a total of $2,500.

This matter is removed from the Review docket.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.

cc: Mr. Francisco Gabriel Ramirez-Gutierrez

7212 Normandy Lane

Falls Church, VA  22042

Clean Scape, Inc.

7535 Lisle Avenue

Falls Church, VA  22043

CMI Octagon, Inc.

P.O. Box 85631

Richmond, VA  23285

Every day, 36 people in the United States die, and approximately 700 more are injured, in motor vehicle crashes that involve an alcohol-impaired driver.

This December, during National Drunk and Drugged Driving Prevention Month (3D Month), consider what you and your community can do to make injuries and deaths from impaired driving less of a threat.

The Problem

• According to the National Highway Traffic Safety Administration (NHTSA), about three in every ten Americans will be involved in an alcohol-related crash at some point in their lives.
• In 2006, 13,470 people died in alcohol-impaired driving crashes, accounting for nearly one-third (32%) of all traffic-related deaths in the United States.
• In one year, over 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics. This accounts for less than 1% of the 159 million self-reported episodes of alcohol–impaired driving among U.S. adults each year.
• Alcohol-related crashes in the United States cost about $51 billion a year.

Protect Yourself and Your Family and Friends

During the holiday season, and year-round, take steps to make sure that you and everyone you celebrate with avoids driving under the influence of alcohol. Following these tips from NHTSA can help you stay safe:

• Plan ahead. Always designate a non-drinking driver before any holiday party or celebration begins.
• Take the keys. Do not let a friend drive if they are impaired.
• Be a helpful host. If you’re hosting a party this holiday season, remind your guests to plan ahead and designate their sober driver, always offer alcohol-free beverages, and make sure all of your guests leave with a sober driver.

Know How Communities Can Help

Proven community and state-level methods for reducing alcohol-impaired driving include:

• Sobriety checkpoints. Studies found that fatal crashes thought to involve alcohol dropped by about 22% following implementation of sobriety checkpoints.
• Minimum legal drinking age (MLDA) laws. Studies found that raising the MLDA to 21 reduced crashes by about 16% among people ages 18-20 years.
• 0.08% BAC laws. Fatal alcohol-related crashes declined about 7% after 0.08% BAC laws were passed.
• “Zero tolerance” laws for young drivers. Three studies found that zero tolerance laws resulted in declines in fatal crashes among drivers ages 18.20 years of between 9% and 24%

Parents are concerned about protecting their teen’s health and safety. But not everyone realizes that motor vehicle crashes are the leading cause of death for U.S. teens:

• In 2006, 3,490 young people ages 15 to 20 — an average of more than nine a day– died in motor vehicle crashes, and another 272,000 were injured.

Overall, younger drivers lack experience on the roads and are less likely than older drivers to recognize risky situations. While lack of experience increases teens’ crash risk, so does driving with teen passengers while unsupervised. As the number of teen passengers goes up, so does the risk of a crash.

Fortunately, there are proven ways to reduce teen drivers’ risk on the roads. Graduated driver licensing (GDL) systems, combined with parental management, can make a positive difference and make your teen a safer driver.

Know How Much Parents Matter

Is your teen driving or riding with other teens to prom?

Whether your teen’s prom is this season or on the horizon, know that you can play a key role in influencing his or her road safety behavior—on prom night and at all times. As a parent or guardian, you’re in a unique position as a driving teacher, supervisor and role model. You make the rules about when, where, and with whom your teen can drive. You can also help reinforce important messages about the importance of using seatbelts and the risk of alcohol-impaired driving.

Find state-specific information on your GDL laws.
Typically, the three stages of GDL are:
1. A minimum supervised learner’s period.
2. An intermediate license (once the driving test is passed) that limits unsupervised driving under high-risk conditions, such as night-driving or driving with other teen passengers.
3. A full-privilege drivers license after completion of the previous stages.

Know How GDL Works

GDL laws differ by state, but the primary goal and format is the same across the country. Graduated licensing is a three-step process developed to let new teen drivers get their initial experience under low-risk driving conditions.

GDL programs are designed to improve teens’ safety and reduce their crash risk. Research has shown that the most comprehensive GDL systems are associated with motor-vehicle crash reductions of up to 40%.

Source: Centers for Disease Control

Recreational boating—enjoyed by over 70,000,000 Americans enjoy each year—can be a wonderful way to spend time with family and friends. And making boating safety a priority can ensure that it stays fun.

Consider that:

• In 2007, 4,586 people were injured, and 605 died, in boating incidents. Of those who drowned, 9 out of ten were not wearing life jackets.
• Over two-thirds (69%) of fatal boating incident victims drowned in 2007.
• An estimated 427 lives could have been saved in 2007 if all boaters had worn life jackets.
• Alcohol use was the leading contributing factor in fatal boating incidents.

Reduce Your Risk

Whenever you are headed out on the water, keep these tips from the U.S. Coast Guard in mind:

Wear it. Properly fitted life jackets can prevent drownings and should be worn by everyone on any boat, at all times. Coast Guard-approved life jackets are now better looking and more comfortable.

Don’t Drink. Alcohol use affects judgment, vision, balance, and coordination. Reports suggest that alcohol was a contributing factor in about one in five boating fatalities.

Take a Course. People operating boats can help keep their passengers safe.  Boating education courses teach the regulatory and statutory rules (“Rules of the Road”) for safe operation and navigation of recreational boats.

Get a Vessel Safety Check. The Vessel Safety Check (VSC) is a free public service provided by the U.S. Coast Guard Auxiliary and U.S. Power Squadron volunteer organizations. For more information on the VSC Program, visit their web site: www.vesselsafetycheck.org.

Know about carbon monoxide (CO). All internal combustion engines, such as boat engines and onboard motor generators, emit CO, an odorless, colorless, poisonous gas. In the early stages, the symptoms of CO poisoning are similar to seasickness, but CO can kill in a matter of minutes. To avoid CO poisoning, be aware of the risk, ensure sufficient ventilation, properly install and maintain equipment, and use CO detectors, especially in living and sleeping areas.

Source: Centers for Disease Control

IN THE WORKERS’ COMPENSATION COMMISSION

Published at 79 O.W.C. 24

RAFAEL FLORES, Claimant

Opinion by the

• • • • • • • • COMMISSION

v.                                         V.W.C. File No. 193-57-99

D B & A GENERAL CONTRACTORS, INC., Employer

MONTGOMERY MUTUAL INSURANCE COMPANY, Insurer

Daniel P. Barrera, Esquire

for the Claimant.

Lisa A. Cay, Esquire

for the Defendants.

REVIEW on the record before Commissioner Diamond, Commissioner Dudley, and Deputy Commissioner Dely at Richmond, Virginia.

Flores requests review of the October 27, 1999 Opinion of the Deputy Commissioner, who concluded that the Commission had no jurisdiction over this foreign injury claim.  We Reverse.

Flores alleged that he was employed by D B & A General Contractor, and that he injured his right hand and fingers while attempting to unclog a lawnmower on September 27, 1998.  D B & A General Contractor stipulated that there was an injury by accident on that day, but the employer denied that Flores was an employee of D B & A, or that the claimant was working for the employer at the time of the accident, or that the claimant’s alleged period of disability was supported by the evidence.  It also disputed that the claimant was contemporaneously employed in similar employment, which would serve to augment the claimant’s statutory average weekly wage.  The employer also denied that the Commission had jurisdiction over the accident, which occurred in the District of Columbia.

The Deputy Commissioner addressed only the issue of jurisdiction in her Opinion, and we limit our review to that issue.  In other words, we do not at this stage in the proceedings decide whether or not the claimant was an employee in fact, or whether he was an employee at the time of the accident, or whether he was an independent contractor.  We decide only that the Commission has subject matter jurisdiction to consider such facts.

Va. Code Ann. 65.2-508 provides, in pertinent part, that,

A. When an accident happens while the employee is employed elsewhere than in this Commonwealth which would entitle him or his dependents to compensation if it had happened in this Commonwealth, the employee or his dependents shall be entitled to compensation, if:

1. The Contract of employment was made in this Commonwealth; and

2. The employer’s place of business is in this Commonwealth; and provided the contract of employment was not expressly for service exclusively outside the Commonwealth.

In order to establish our jurisdiction, the claimant has the burden to prove that he satisfies all these factual prerequisites.

The claimant had worked for D B & A General Contractors at an earlier time, and he was working in early 1998 for another employer.  The uncontradicted evidence establishes that Carl Bernstein, the corporate president of D B & A, telephoned the claimant at his [the claimant's] home in Alexandria, Virginia in January or February 1998 to request that Flores return to work with D B & A on weekends.  The claimant accepted.

Flores testified that he understood that he was to work for D B & A at various locations in Virginia, and also in the District of Columbia.  Bernstein testified that the claimant worked for D B & A only in Virginia, and that the work Flores performed in the District was work performed for him [Bernstein] personally.  The claimant suffered his injury while performing work for Bernstein in the District.  Flores testified that approximately 80% of his work was performed in Virginia, and the rest in the District, while Bernstein estimated that 70 – 80% of the work was performed in the District.

The Deputy Commissioner held that the Commission lacked jurisdiction for this foreign injury, because “the majority of the work done by the claimant was in D.C.”  This implicitly acknowledged the undisputed fact, even if the testimony of the employer was accepted without question, and even if the documentary evidence produced by the employer pursuant to discovery was incomplete, that at least some of the work was to be performed in Virginia.  The pertinent language of Code 65.2-508(A)(2) clearly instructs that jurisdiction lies if “the contract of employment was not expressly for service exclusively outside of the Commonwealth.”  In other words, where the employee is assigned to perform any work in the Commonwealth, however deminimis, we have jurisdiction.  Here, the employer himself testified that the contract of employment was for work to be performed in Virginia, so we certainly have jurisdiction.  Jurisdiction would still lie if the employee is assigned work outside Virginia, pursuant to his contract of employment.  The Deputy on Remand will have to make that determination.

We note here that the Deputy Commissioner in her Opinion did not address the other elements of Code 65.2-508.  In the interests of judicial economy, and because the evidence presented at the evidentiary hearing was clearly dispositive as to these questions, we will rule on them on Review.

We first consider whether the contract of employment was made in Virginia:

Under familiar principles of conflicts law, when the acts “which constitute offer and acceptance are scattered over more than one state . . . [t]he authorities are reasonably clear that, in this event, the contract is made at the same time and place “where the last act necessary to the completion of the contract was done – that is, where the contract first creates a legal obligation.”  American Conflicts Law, Robert A. Leflar, et al., @ 145, at 408-09 (4th ed. 1986) (citing 1 A. Corbin, Contracts @ 55 et seq. (1963); 1 S. Williston, Contracts @ 97 (W. Jaeger 3d ed. 1957); Restatement of Contracts @ 74 (1932)).

Tummino v. Fleet Transit, Inc., VWC File No. 186-97-73 (April 23, 1999).  An oral contract of hire made in Virginia is effective for the purposes of Code 65.2-508.  Whitley v. Cardinal Freight Carriers, Inc.,  VWC File No. 166-03-27 (November 9, 1994), citing Locastro v. Power Specialists, Inc., VWC File No. 136-32-58 (September 6, 1989).  Here, where the employer effectively came to Flores’ home, in this case by telephone, and made a job offer, the acceptance by Flores at that time constituted the completion of the contract of employment.  Thus, we find that the early 1998 contract of employment with Flores was made in the Commonwealth.

No ore tenus evidence was presented to establish that the employer had a place of business in Virginia.  However, the claimant filed W-2 Tax Forms, time logs, and cancelled checks from the employer as evidentiary exhibits, which established that D B & A had places of business in McLean and in Manassas Park, Virginia.  Even if these were established for bookkeeping and administrative purposes only, it sufficiently satisfies the requirements of Code 65.2-508.  See CLC Construction, Inc. v. Lopez, 20 Va. App. 258, 456 S.E.2d 155 (1995).

Accordingly, upon consideration of these facts, we REVERSE the October 27, 1999 Opinion of the Deputy Commissioner.  We hold that the Commission does have jurisdiction under Va. Code Ann. 65.2-508 to determine whether Flores was an employee of D B & A General Contractors at the time of his accident on September 27, 1998, and to decide to what extent he is entitled to benefits under the Virginia Workers’ Compensation Act.  This case is therefore REMANDED to the Deputy Commissioner for an expedited opinion on the merits of this claim and all other questions that remain undecided.¹

This case is REMOVED from the Review Docket.

¹ This is an interlocutory opinion only, since we have decided only the jurisdictional issue and have Remanded the case for a determination on the merits of Flores’ Claim For Benefits.  See Uninsured Employer’s Fund v. Harper, 26 Va. App. 522, 495 S.E.2d 540 (1998).

IN THE WORKERS’ COMPENSATION COMMISSION

JUAN A.  HERNANDEZ,  Claimant

Opinion by TARR

Commissioner

v.                                                                                                                            Claim No.   194-63-68

C D CARPENTRY, INC.,  Employer

CINCINNATI CASUALTY COMPANY,  Insurer

Daniel P. Barrera, Esquire

for the claimant

William E. Glover, Esquire

for the defendants

REVIEW on the record before Commissioner Tarr, Commissioner Diamond and Commissioner Dudley at Richmond, Virginia.

The employer requests Review of the Deputy Commissioner’s September 3, 1999, Penalty Order assessing a 20 percent penalty pursuant to Code 65.2-524, for compensation not paid within two weeks after it became due commencing on June 9, 1999.  The employer argues that because the claimant returned to work at his pre-injury average weekly wage on June 10, 1999, it was entitled to cease payments under the claimant’s open Award.  We VACATE.

On February 23, 1999, the claimant filed an application for benefits alleging an injury by accident on January 28, 1999, and seeking continuing temporary total disability benefits and medical benefits.  On March 31, 1999, the parties submitted a Memorandum of Agreement stating that the claimant was entitled to continuing temporary total disability benefits commencing January 28, 1999, based on a pre-injury average weekly wage of $524.71.  On August 6, 1999, the Commission entered an Award Order based on the March 31, 1999, Memorandum of Agreement, for payment of continuing temporary total disability compensation and medical benefits beginning January 28, 1999.

The employer alleges that in the meantime, on June 10, 1999, the claimant returned to work at a wage equal to or greater than his average weekly wage.  The employer supports this claim with a September 22, 1999, affidavit from its office administrator.  The employer filed an application for a change in condition on September 24, 1999, alleging a return to work on June 10, 1999.  That application is still pending.

In a letter filed August 23, 1999, counsel for the claimant advised the Commission that despite the August 6, 1999, Award Order, “the carrier has not paid the claimant any compensation since approximately June 9, 1999.”  Claimant’s counsel requested an assessment of a 20 percent penalty on the unpaid compensation.  By Order of September 3, 1999, the Deputy Commissioner assessed a 20 percent penalty pursuant to Code 65.2-524 on all compensation more than two weeks in arrears.

In its written statement, the employer argues that during the period between June 9, 1999, and June 24, 1999, it attempted to obtain the claimant’s signature on an Agreed Statement of Fact terminating the existing open Award based on the claimant’s return to his pre-injury work.  The claimant did not sign the agreement.  The claimant’s counsel then informed the employer that the claimant was again temporarily totally disabled due to his work injury.  The employer blames its non-payment of benefits from June 10, 1999, to June 24, 1999, on the claimant’s failure to execute this agreement.¹

Code 65.2-524 provides that: “If any payment is not paid within two weeks after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof.”  The language of Code 65.2-524 is mandatory, and its application has been strictly applied.  The legislature has clearly and unambiguously provided for a 20 percent penalty when payment of benefits is not timely made, regardless of the fact that there may be a good excuse for the late payment.  See Sanderson v. Corrections Adult Services, VWC File No. 164-78-40 (May 30, 1996).

There are three ways to terminate an award:  (1) by the claimant’s execution of an Agreed Statement of Fact; (2) by the claimant’s execution of a Supplemental Memorandum of Agreement; or (3) by the employer’s filing of an appropriate application to terminate benefits.  Smith v. Earl Haines, Inc., 62 OIC 422 (1983).   Despite the employer’s alleged efforts, the claimant failed to execute the Agreed Statement of Fact.  Therefore, the employer needed to file an application to terminate benefits.  It did so, on September 24, 1999.  Commission Rule 1.4 C 1 requires payment to date of return to work.

The employer was not required to make any payments after June 9, 1999, because of the pending Application for Hearing.  If the Application is granted, then no further benefits or penalties are owed.

The employer voluntarily reinstated temporary total benefits on June 24 so the disputed period is June 10 to June 24, 1999.  It appears that this issue might be resolved without the necessity of either an evidentiary or an on the record hearing.

The Deputy Commissioner’s September 3, 1999,  Penalty Order is VACATED.  This case is referred to the Commission’s mediation section.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within

thirty days from receipt of this Opinion.

¹ The employer also concedes that the claimant is entitled to temporary total disability benefits from June 24, 1999.  The employer has paid and continues to pay these benefits since September 1999.

IN THE WORKERS’ COMPENSATION COMMISSION

JOSE LEONEL CANALES, Claimant   Opinion by DIAMOND

Commissioner

• 1. VWC File No. 195-67-77

THE ROOFING CENTER, INC., Employer

WAUSAU UNDERWRITERS INSURANCE COMPANY, Insurer

Daniel P. Barrera, Esquire

for the claimant.

S.T. Mullins, Esquire

for the employer.

Susan A. Evans, Esquire

for the insurer.

REVIEW on the record before Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.

Each party seeks Review of the Deputy Commissioner’s February 2, 2000, Opinion. Because the record was thoroughly developed and the issues thoroughly briefed in this case, we decline the defendants’ request to present oral argument on Review.  Code  65.2-705(B); Barnes v. Wise Fashions, 16 Va. App. 108, 112, 428 S.E.2d 301, 303 (1993).

On March 17, 1999, the claimant, a roofer’s helper, fell approximately 30 feet from a roof while working for the employer delivering wooden roofing shingles.  At the November 1, 1999, hearing, the parties stipulated that the claimant sustained injuries to his head, right shoulder, face, collarbone, and left leg, and that these injuries occurred “in the course of” his employment.  The parties further stipulated that the claimant was totally disabled because of the accident.  In addition to a willful misconduct defense, the defendants asserted that the accident did not “arise out of” the claimant’s employment, but was an unexplained fall.

The claimant testified that he worked for the employer since August 1995.  He stated that he was familiar with the employer’s safety rules, and that the employer taught him how to go up on a roof safely.  He further stated that he was aware that he was required to be “tied off” the entire time he was on the roof, and that tying off was specifically addressed at safety meetings.  He testified that he has never been reprimanded or disciplined by the company for not following the rules.  He received the company’s “Helper of the Year’ award in 1996 for following all of the company’s rules.  He explained that he earlier injured his lower back when he fell off of a roof, but that his fall was arrested by proper use of a safety harness.

The claimant testified that he could recall climbing up to the roof at the worksite on March 17, 1999, and that he was wearing a safety harness attached to a safety line. He explained that the safety line connects to the safety harness by means of a clip attached to the safety line, which is itself then clipped to a ring on the back of the safety harness located behind the claimant’s head.  He stated that he could not see whether the clip was hooked properly to the harness because it attaches behind him, but that he checked with his hand to make sure it was attached, though he did not tug on the safety line.

With regard to tying off the safety line that day, the claimant testified that all he could remember was tying off to the employer’s “boom,” or crane, once he was on top of the house.  He stated that after he tied off to the boom, the other end of the safety line was attached to the back of his safety harness. He denied using roof brackets on the roof, but heard them discussed at safety meetings, and was aware that brackets were kept in the truck. The claimant testified that he has no recollection of having removed or unclipped his safety line while he was on the roof, and he could think of no reason that he would do so. He testified that he could perform his entire job without unhooking his safety line.  The last thing prior to the accident that he could recall was taking a bundle of shingles to a particular place on the roof.  When questioned whether he knew what caused him to fall, he answered “No.”

Morris Gomez worked for Shiner Roofing on March 17, 1999, and testified that he witnessed the claimant unloading cedar shingles from a truck.  Mr. Gomez was on the roof, and he first noticed the claimant when he arrived in the employer’s truck.  He testified that the roof of the house was “a little bit steep,” and stated that the old shake roof shingles were wet from a rain the night before.  He noticed that the claimant was wearing a safety harness, and that when he started working, his safety harness was attached to the boom with a safety line.  He worked with the claimant unloading the shingles for about a half an hour before the accident. He stated that the claimant had two safety lines connected together because “one wasn’t long enough to reach the spot where they were going to unpack everything.”

Mr. Gomez testified initially that he saw the claimant fall.  He stated that the last time he saw the claimant before the accident, the claimant’s safety harness was connected to the safety line, which in turn was attached to the boom. He testified that approximately one minute passed between the time he last saw the claimant and the fall.  During this minute, Mr. Gomez was walking towards the boom to get another bundle of shingles. He described what happened next as follows:  ”I heard him scream and then I saw him slide down, and then I came to notice that he wasn’t attached.” He testified that he saw the claimant slipping down the roof and heard him yelling “Hey! Hey!”  The safety line was not attached when the claimant fell. It remained on the roof, attached only to the boom. When asked what he believed caused the claimant to fall, Gomez testified as follows:

• He was trying to move the shakes from one side to the other so that he could make more room for the things that were — for the ones that were on the truck. Then he turned around and moved toward a spot that we had not fixed yet that was wet. And then that is how he fell down.

On cross-examination, however, Mr. Gomez conceded that he did not see the claimant during the one minute that he was walking to get the shingles, that he did not see the claimant start to fall, and that when he first noticed him he was already falling. He testified that the claimant slid for about 10 seconds before falling off the roof.

Jesus Ramos testified that he worked for Shiner Roofing on March 17, 1999, and was also present when the claimant fell.  He stated that the roof being worked on was steep, and that the wood shingles were wet.  He was working on the roof, and observed the claimant climb up to the roof.  He explained that the claimant was wearing a safety harness that was connected to a “rope,” which in turn was connected to the boom.  Mr. Ramos testified that although he did not see the claimant actually attach the safety line, he noted that the claimant was “always”connected to it.  Mr. Ramos stated that he did not see the claimant fall, but noted that he was still wearing the safety harness after his fall. He stated that the safety line was not attached to the claimant’s harness, but remained attached to the boom from the employer’s truck. Although he did not specifically inspect the claimant’s harness, he did not see anything broken or inoperable about it.

Manuel Jiminez testified that he worked for the employer and supervised the crew delivering materials for the employer on March 17, 1999.  He worked with the claimant for approximately one year, and worked with him that day.  He testified that the claimant had a “really good” reputation for safety.  He never reported or reprimanded the claimant for failing to follow safety rules.

Mr. Jiminez testified that on March 17, 1999, wooden shingles were moved from a truck to the roof by means of a conveyor built into the truck. The claimant was assigned to climb to the roof and move the shingles as they came up the conveyor.  He stated that the house was two stories high in the front, but because of the basement level, it was about three stories high in the back.

Mr. Jiminez testified that he saw the claimant put on his safety harness.  To his knowledge, there was nothing wrong with the harness.  He observed the claimant climb to the top of the roof, unattached to a safety line, and, once there, attach one end of the safety line to his harness and the other end to the boom.  He knew of nothing wrong with the safety line. Once the claimant attached the clip, Mr. Jiminez did not see the claimant disconnect from the safety line.  He stated that he could think of no reason why an employee would unhook the safety line from the harness once on the roof.

He testified that the crew usually did not use two safety lines connected together, but sometimes they would if there were two in the truck. The employer’s safety lines were either 20 or 30 feet in length. There were two available to the claimant on that day because Mr. Jiminez himself was unable to climb up on the roof and help him.  He explained that two safety lines might be used together to reach further down the roof, because the weight of the shingles delivered to only one spot on the roof would be too heavy for the house to bear.  He testified that the decision to use one or two safety lines was left up to the person who is to be up on the roof.  He was not aware that anyone working for the employer had ever been disciplined for using two safety lines together.

The last time Mr. Jiminez saw the claimant before the accident was shortly after the claimant tied off to the boom.  He did not see the claimant fall, but testified that the other men on the roof told him that the claimant had fallen.  When he went over to find him lying on the ground, Mr. Jiminez observed that the claimant was still wearing his safety harness, but there was no safety line on the ground.  He testified that he examined the claimant’s harness after the accident and found it to be in good condition.  Specifically, he found the ring where the safety line attaches to be in good condition. He could not say how long he spent examining the harness, but admitted that he examined it right before he took it off the claimant.  The claimant was unconscious and bleeding at the time.  Once he took the harness off of the claimant, he believed he placed it in a toolbox.  He did not know what happened to it after that.

Larry Paige testified that he is currently Assistant Manager for the employer, but that in March of 1999 he worked as a dispatcher.  Mr. Paige testified that on March 17, 1999, he heard that the claimant had fallen, and he immediately went to the scene of the accident. He testified that when he arrived, he went up on the roof of the house.  He stated that he found two safety lines connected together, which in turn were connected to the employer’s conveyor or boom. There was no roof bracket present.  Mr. Paige testified that he was concerned because a roof bracket was necessary on that job.  He stated that they were allowed no more than a 6-foot free fall.  Therefore, in order to have no more than a 6-foot fall on one safety line from anywhere on the roof, you needed a roof bracket in the middle of the roof.  He opined that with the two safety lines connected together, the claimant would have hit the ground even if the safety lines had been properly connected to his safety harness.

Mr. Paige testified that when he climbed up to the roof, he used the same safety line that the claimant had been using to attach a roof bracket in the middle of the roof.  He then attached the safety line from the bracket to his own safety harness, and he noted nothing wrong with the safety line when he used it.  He estimated that that the roof was between 30 and 40 feet long, and the claimant’s fall had been about three stories or between 20 to 30 feet.  He then took photographs of the accident scene for the employer’s safety manager and the police.

William Alley testified that he was the employer’s Safety Manager, and had held that position since 1993.  Mr. Alley testified that he trained all newly hired employees and, if they are Spanish speakers, he has a translator present for the training.  Safety rules have been translated from English to Spanish as well.  The claimant last underwent a review of fall- protection rules on February 20, 1999.  Mr. Alley testified that the job site safety rules were enforced, and he described in detail how he performed site inspections and explained the penalties for particular rule infractions.  He explained that if he arrived at a job site and an employee was found not wearing his or her fall protection, “they are terminated right on the spot.” The harsh penalties for fall protection equipment violations were imposed for violations of the 100% tie-off rule, failure to use roof brackets, and having no more than a 6-foot free-fall on a safety line.

Mr. Alley testified that he received a call informing him that a fall had occurred, and he immediately drove to the site. When he arrived, a Fairfax County Police officer took him to the place where the claimant had fallen, but would not let him on the roof until their investigation was complete.  He testified that he could see from ground level the two safety lines as they lay on the roof. He noted that they were clipped to the employer’s conveyor.

Mr. Alley described the clips on the safety lines as “double safety lock clips.” He explained that in order to open the clip, it was necessary to compress the back of the clip first, before the front clip would open.  Therefore, both the front and the back of the clip must be compressed at essentially the same time to open the clip fully.  Mr. Alley agreed that the claimant could not see the ring to connect the safety line, but added that he could tell if it were attached properly by pulling on it.  He testified that it was unlikely that the claimant improperly attached the safety line clip to the ring on his harness because, due to its heavy weight and steel construction, it would have fallen to the roof at some point during the claimant’s extended period working on the roof.  Mr. Alley testified that it was unlikely that the webbing of the safety line would get caught in the clip, or that the clip would improperly attach to the ring on the harness.

Mr. Alley testified that being on the roof without a safety line attached to the safety harness “violates our fall protection program completely.”  He stated that it was permissible to tie the harness off to the end of the boom if the boom extended to the peak of the roof.  Otherwise, the employees were required to establish an anchor point with a bracket.  He explained in some detail how a roof bracket allowed employees to safely work further away from the boom.  He noted that in the present case, however, the boom only extended to the garage area, not to the peak of the main roof from which the claimant fell.  There was no evidence that the crew had been using roof brackets.

Mr. Alley admitted that he had no evidence that the claimant voluntarily disconnected his safety line that day.  However, he stated that he determined that the claimant violated a known safety rule because he was, in fact, disconnected from his safety line when he fell.  Mr. Alley testified that connecting two safety lines was not a violation of a safety rule or regulation if the safety line as a whole does not allow more than a 6-foot free fall from the roof area.  He noted that in the present case, the two safety lines together would have resulted in more than a 6-foot free fall. On cross-examination, however, Mr. Alley conceded that the 6-foot free fall rule was not contained in the company’s safety rules, stating that he verbally instructed them on it. He agreed that there were no written Spanish translations of the verbal safety rules.

Daniel Worley, a regional operations manager for the employer, testified that he went on the roof at the accident site after the claimant’s fall.  He found two safety lines on the roof, but could not recall whether they were hooked together.  He testified that there was no safety rule regarding hooking lines together. He stated that he inspected the safety line on the roof when he hooked himself onto the one that was connected to the boom.  By the time he got on the roof, the other line used by the claimant was hooked to a roof bracket, which had been placed on the roof following the accident and was being used by Larry Paige.  He acknowledged that the 6-foot free fall rule was not written in the safety rules, but added that it was stressed to their employees at every safety meeting.  The employer’s rules stated that employees must tie off at the peak of the roof and remain tied off at all times.  He further testified that the length of one line was insufficient to reach from the boom to the point where the claimant fell.

When asked if he had any evidence that the claimant intentionally removed the safety line from his harness, Mr. Worley testified that it was obvious that the claimant was unhooked because he fell without a line connected to his harness. According to Mr. Worley, the line must manually be removed.  He conceded, however, that this assumed that the safety line had been properly connected to the harness in the first place.  Mr. Worley was not aware of any defect in the safety equipment.  He also stated that he was aware of no witness who observed the claimant disconnect his safety line while on the roof.

The defendants argue that the claimant’s accident was an “unexplained fall” and therefore non-compensable.  According to the defendants, this case is indistinguishable from PYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996), in which the Court of Appeals reversed an award of benefits to an employee because the employee’s injuries were the result of a “noncompensable, unexplained accident.”

Harris involved a truck driver who was injured when he fell out of his cab.  Although he did not recall how he fell, some of the theories advanced included that he was “coldcocked,” that he slipped on ice covering the truck’s cab, and that he suffered “cardiac irregularity, decrease of glucose in the blood, dizziness, or slipping while he exited the truck.”  22 Va. App. at 220, 468 S.E.2d at 690.  The court rejected the Commission’s conclusion that the height and iciness of the truck cab were an “added risk” of his employment and therefore the cause of his fall, reasoning that to so conclude would effectively create a presumption that the fall was caused by the employment.

Here, however, the claimant’s fall was not “unexplained.”  Unlike the employee in Harris, whose fall out of a truck cab was not witnessed and who could not recall the specifics of the fall, the claimant slipped down a steep, damp roof for ten seconds and fell from the end of the roof for 30 feet.  A fellow employee witnessed him slipping down the roof.  If any element of this accident is “unexplained,” it is why the claimant initially began slipping.  Regardless, he slipped, and at the end of his slip, he fell 30 feet and severely injured himself.

The Court of Appeals explained in Harris why the fall from the truck cab was not compensable as follows:

• [I]f the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment.  But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.

Id. at 222, 468 S.E.2d at 691 (citations omitted).  Applying this analysis, the court concluded that the employee failed to prove that the fall from the truck was caused by his employment.  The truck’s iciness and height, standing alone, did not “establish the basis for the fall,” nor was there any evidence that the claimant “slipped or tripped” or “lost his grip.”  Id. at 224, 468 S.E.2d at 692.

Here, on the other hand, the claimant’s fall was witnessed.  It occurred after the claimant slid down the steep, damp roof for approximately ten seconds.  Moreover, there can be no doubt that the claimant would not have been equally exposed to a thirty-foot fall apart from his employment as a roofer’s helper.  Therefore, we conclude that the claimant established that the March 17, 1999, accident arose out of the employment.

We next turn to the employer’s willful-misconduct defense.  The claimant argues on Review that the deputy commissioner erred in concluding that the employer met its burden of establishing that the March 17, 1999, accidence was caused by the claimant’s willful misconduct.  The deputy commissioner found that the “uncontradicted evidence establishes that the claimant was not wearing a safety line while working on the roof, as required by the employer’s safety rules, when he fell on March 17, 1999.”  This finding was based on the fact that the claimant’s safety harness was not hooked to the safety line when he was found after the fall.  The safety rule at issue was the requirement that employees remain tied-off at all times while working on a roof.

Three eyewitnesses to the claimant’s actions immediately preceding the fall each testified that they saw the claimant tied off while he was on the roof.  The deputy commissioner found, however, that the claimant must have unhooked himself, reasoning that his testimony that he did not unhook from the safety line before the fall was not credible, and that circumstantial evidence supported a conclusion that there was no defect in his safety equipment.  According to the deputy commissioner, the claimant “presented no evidence to explain why his lanyard was not attached to his harness” when he fell.

We believe the deputy commissioner incorrectly placed the burden of proof of this issue on the claimant.  The evidence clearly established that the claimant was tied-off shortly before his fall.  That the claimant was next found on the ground without being attached, as well as the safe and sturdy design of the safety equipment, albeit not the actual equipment used by the claimant when he fell, was the only evidence to support the conclusion that the claimant intentionally unhooked himself.  The employer asks us to speculate that the claimant unhooked himself, but it is just as reasonable to speculate that the claimant incorrectly hooked himself up.  Accordingly, we find that the employer did not meet its burden.

Moreover, Code 65.2-306 requires the employer to show that the willful misconduct caused the claimant’s injury.  The evidence established, however, that even if he had been tied off, the claimant would have been injured in the fall.  The length of the safety line was such that the claimant would have struck the ground even if connected.

Finally, the deputy commissioner correctly concluded that the employer failed to enforce the safety rule in question.  The claimant’s supervisor testified that he witnessed the claimant, as he ascended to the roof on March 17, 1999, fail to connect to the safety line, but then tie off to the boom after he reached the roof.  The safety rule, however, required employees to be tied off at all times, including while ascending to a roof.  Thus, on the date of the accident, the employer did not enforce the safety rule that the claimant allegedly violated.

For these reasons, the decision by the deputy commissioner that the claimant was entitled to workers’compensation benefits for the March 17, 1999, accident is AFFIRMED.

This matter is removed from the review docket.

TARR, COMMISSIONER, Dissenting:

I respectfully dissent.

The Commission improperly relies upon the testimony of Morris Gomez to find that the claimant slipped on a steep, damp roof, which was a condition of his employment.  This factual conclusion is mere inference and not based upon the actual testimony of the witness.  Mr. Gomez did not observe what caused the claimant’s fall.   He was not watching the claimant when the fall started.

What occurred at the precise moment when the claimant initially began to fall is the essential inquiry in this case. No witness presented testimony regarding what occurred at this critical moment. The claimant candidly testified that he did not know what caused him to fall.

The majority assumes the fall was caused by a slip on the wet roof because the claimant was slipping down the roof when Gomez turned to observe the claimant after the fall began.  Under this assumption, any fall from a roof would be compensable.  This analysis is suggestive of the positional risk doctrine and ignores the distinction between idiopathic and unexplained falls so carefully set forth by the Court of Appeals inPYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996).

Because the claimant failed to produce any evidence of what actually caused him to fall, it is impossible to conclude that the requisite causal connection between the claimant’s employment and the accident has been established.  For these reasons, I would REVERSE the Deputy Commissioner’s Opinion that the claimant’s accident arose out of his employment.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty (30) days of receipt.

IN THE WORKERS’ COMPENSATION COMMISSION

Settled Pending Appeal

ANGEL MANUEL GARCIA (Deceased), Employee

ELVIRA ALVARENGA, Claimant

Opinion by DIAMOND

Commissioner

v.                                                                                                                             VWC File No. 202-37-47

W M SCHLOSSER CO., INC., Employer

PENNSYLVANIA MFG. IND. INS. CO., Insurer

Daniel P. Barrera, Esquire

for the Claimant.

Frederick T. Schubert, II, Esquire

for the Defendants.

REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.

The claimant requests Review of the deputy commissioner’s April 26, 2001, Opinion.  Angel Garcia suffered fatal injuries in a compensable accident on January 12, 2000.  The claimant, Garcia’s mother, sought death benefits from the employer, alleging that she was a parent in “destitute circumstances” under Code 65.2-515(A)(4).  The deputy commissioner found that the claimant did not meet her burden of proof and denied benefits.  We REVERSE.

Garcia was working on a roof on January 12, 2000, when he fell 40 feet, suffering multiple severe injuries, including a depressed skull fracture.  Garcia died as a result of these injuries on January 15, 2000.  The claimant, who is a citizen of Honduras and lives there, traveled to the United States on a tourist visa in November 2000 and testified in a hearing conducted in this matter on March 16, 2001.  According to her testimony, she was scheduled to return to Honduras at the end of March 2001.

The claimant, 53 years old, testified that she received three years of schooling and has worked, selling clothes from her home, until 3 years ago when she quit working because of her poor health.  Her children, all adults, live in the United States.  She lives with her infant granddaughter and, until her son’s death, her son’s girlfriend and that woman’s three children.  She stated that she supported her granddaughter with financial assistance from the child’s mother, the claimant’s daughter.

The claimant testified that she has suffered from poor health since 1990.  She was diagnosed with “nervous tension and headaches and fainting” and also described suffering convulsions.  She received treatment for these conditions in Honduras, and after coming to the United States in November 2000, has been diagnosed with and treated for diabetes and hypertension.  She stated that she has been unable to work because of her health for three years.

The claimant described her living conditions.  Her residence was in a small town, “like the country.”  It had two bedrooms, a kitchen, and a living area, and was still in a state of being constructed.  It had electricity and water, but no bathroom or hot water.  The claimant cooked on a wood stove.  She also described having some furnishings, including a sofa, coffee table, table, chairs, bed, television, refrigerator, and freezer.  She stated that she began building the house on land she purchased for $2,000 in 1979.  She stated that the remaining construction on the house consisted of “roof, paint, and the wall.”

The claimant also described her monetary assets and income.  Basically, she relied on her adult children for her support.  She was required to collect approximately $7,000 to hold on deposit before she could acquire a tourist visa.  She stated that her daughter forwarded her this money, over time, which she stated was held in her name but belonged to her daughter.  She stated that she did not use this money for personal reasons.  She described the income she received from her children, which was irregular and of varying amounts.  Her sister, a resident of El Salvador, testified that she had, on occasion, delivered money to the claimant from her children for a fee.  She had records from July 1999 through January 2000, showing deliveries to the claimant totaling $2,660 for this period.

The claimant estimated that her monthly expenses were $350, including $100 per month for a freezer purchased on credit after Garcia’s death.  When asked how she would support herself when she returned, the claimant responded, “I don’t know.”  She stated that she relied on friends, family, and neighbors for transportation for medical treatment.

Under Code 65.2-307, when an employee suffers an “injury or death by accident” caused by his or her employment, the employee and his or her “personal representative, parents, dependents or next of kin” are unable to seek a remedy under common law for the injury or death.  Instead, these persons are provided a remedy under the Act, set forth in Code 65.2-512 & -515, in exchange for their common-law remedy.  Briefly, the Act allows a parent of a deceased employee to collect death benefits, based on the employee’s average weekly wage, if the parent was dependent on the employee.  The parent is presumed to be dependent if it is shown that the parent was in “destitute circumstances.”

In Bagwell v. Doyle & Russell, 187 Va. 844, 48 S.E.2d 229 (1948), the Supreme Court examined the factors to be evaluated in determining whether a parent of a deceased employee was in “destitute circumstances.”  In Bagwell, a father of a deceased employee sought death benefits.  The evidence showed that the father was married and basically supported by his wife and children.  He suffered from several physical ailments, but was capable of light work.  He had two unmarried adult children living with him “with sufficient income to provide for his support.”  Id. at 849, 48 S.E.2d at 231.

The Court was persuaded, however, that the father showed that he was in destitute circumstances.  The Court reasoned that despite the father’s physical ability to perform light work, his lack of education and experience were a bar to any “reasonable hope of employment.”  Moreover, his physical condition and age “undoubtedly impair[ed] his ability and undermine[d] his endurance.”  The Court also established that the standard to be used in evaluating these factors was whether the father was capable of “earning his livelihood.”  Id. at 852-53, 48 S.E.2d at 233.

As for the contribution of the father’s wife and children, the Court declined to consider this potential income, reasoning that such support “by no means insures the parent a continuous livelihood for any definite period.”  The Act, on the other hand, allowed (at that time) for a reasonably comfortable livelihood for nearly six years.  It is not accompanied by contingencies or uncertainties.  We think it was the intent of the Act to provide this security.  Id. at 854-55, 48 S.E.2d at 234.  The Court found justification for its holding in the Act’s prevention of the father from pursuing a common-law remedy against the employer.

In Covey v. Suburban Masonry, 70 O.I.C. 184 (1991), the Commission examined facts similar to those present here.  There, a deceased employee’s parents were found to be “parents in destitute circumstances.”  The parents were able only to earn “meager earnings” and the father was unable to work because of poor health.  The mother earned minimal wages from two jobs and supported her husband and a minor child with those earnings.  In finding that the parents were in destitute circumstances, the Commission was particularly persuaded by the parents’ financial vulnerability, reasoning as follows:  “A family of three which has earning potential allowing it to eke out no more than a bare existence with no resources to provide against natural or inevitable emergencies such as medical emergencies or breakdown of transportation, heating, or electrical systems, is properly described as destitute.”  Id. at 188.

In this case the evidence showed that the claimant has not been gainfully employed for three years because of her health.  Her testimony that she has suffered from poor health was corroborated by the treatment she has received since coming to the United States for diabetes and hypertension.  We note that both of these conditions typically require frequent, regular follow-up treatment, and the claimant has no health insurance.  Moreover, even if the claimant were considered capable of working, her only work has been bartering clothing from her home.  She is 53 with three years of education and poor health.  We do not believe that under these circumstances she has a reasonably good chance of earning her livelihood.  Her testimony was that she did not know how she would support herself.

Additionally, the claimant has been unable to support herself for some time.  She has relied on the generosity of her children, family, and friends to give her money and provide transportation.  Her testimony concerning this support was corroborated by her sister’s testimony and records.  She lives in an unfinished home with meager furnishings and conveniences, with no bathroom or hot water.  Nevertheless, she has cared for her granddaughter and other persons under these conditions, exclusively at the uncertain provision of her children.  This support clearly is fraught with “contingencies” and “uncertainties.”

The lack of health insurance and her meager assets leave the claimant prone to financial disaster even in conducting her routine affairs.  We believe that the claimant has met her burden of establishing that she is in destitute circumstances.  See Payne v. Sprinkle Masonry, Inc., 68 O.I.C. 156, 159 (1989).

The deputy commissioner was concerned with the approximately $7,000 balance held in the claimant’s name used to help the claimant secure her tourist visa.  The claimant testified, however, that her daughter provided her with this money and that its exclusive purpose was to secure the visa, after which time the money belonged to her daughter.  Regardless, considering the death benefits allowed by the Act, we believe that this amount was negligible.

The deputy commissioner also looked to the claimant’s apparent ability “to keep up with her monthly expenses since her son’s death.  The evidence showed, however, that this “ability” was subject to her children’s support.  As set forth in Bagwell, however, this consideration was inappropriate.  As for the employer’s reliance on Oil Transport, Inc. v. Jordan, 22 Va. App. 633, 472 S.E.2d 291 (1996), the parent there had regular income from an annuity and from social security, thus undermining any finding that she was “financially vulnerable.”

We therefore find that Elvira Alvarenga is a parent in destitute circumstances.

For these reasons, the April 26, 2001, Opinion is REVERSED.  This matter is REMANDED to the deputy commissioner for entry of an appropriate Award.

TARR, COMMISSIONER, Dissenting:

I respectfully dissent from the majority’s Opinion.

The evidence supports the Deputy Commissioner’s determinations that Ms. Alvarenga is not disabled and is not a parent in destitute circumstances.

There is no medical evidence that supports the claimant’s allegations of disability.  Contrary to this claim is the fact that at the time of Mr. Garcia’s death, Ms. Alvarenga was able to care for her granddaughter, her son’s girlfriend, and three of the girlfriend’s children.

As to whether Ms. Alvarenga is a parent in destitute circumstances, the Deputy Commissioner held she was not.  The Deputy Commissioner noted that the claimant was capable of working, that her longtime career of selling clothing from her home allowed her to buy land and build a home with electricity, water and a number of modern appliances, save about $7,000 and “there is no indication that she has not been able to keep up with her monthly expenses since (her son’s) death as she was before.”

I agree with the Deputy Commissioner that the burden of proof was not met and would affirm.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.

IN THE WORKERS’ COMPENSATION COMMISSION

EZEQUIEL VELEZ RIVERA, Claimant

Opinion by the

COMMISSION

v.                                                                                                                              VWC File No. 213-20-24

AHC MANAGEMENT, L.L.C., Employer

HARTFORD UNDERWRITERS INSURANCE COMPANY, Insurer

Daniel P. Barrera, Esquire

for the Claimant.

Roger L. Williams, Esquire

for the Defendants.

REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.

This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s June 19, 2003, Opinion finding the claimant established an injury arising out of and in the course of his employment, as well as causally-related disability from January 13 through April 28, 2003.  We AFFIRM the Opinion below.

This 28-year-old maintenance worker testified through a translator that at 9:00 a.m. on May 13, 2002, he and his supervisor, Pablos Zamora, brought a refrigerator up to the second floor of a building.  The claimant was wearing a security belt at the time.  The claimant testified that he told Mr. Zamora he felt a “bump in [his] back”and asked to take a break because he “felt the impact in the back of [his] back” but felt no pain.   The claimant continued working after the break until noon, when he went to lunch and took his belt off and felt pain.  The claimant testified that he went to his bed in his apartment, and later fell because the pain in his back went down his left leg.

The claimant returned to work after lunch and told Mr. Zamora that he had a “very strong pain” in his back.  At approximately 2:30 p.m., he stopped working because he “couldn’t stand the pain anymore.”  The claimant testified that he went with his supervisor to report to the chief and then went home to rest.  However, he fell again because he could not feel his legs, so he decided to go to George Mason Hospital.  He sought follow-up treatment in May and September from Dr. Fernandez.  He returned to full duty on May 20, 2002, but continued to refill his medication.

The claimant denied suffering any other incidents or falls between May 13, 2002, and January 2003, when his condition became worse and the medicine no longer worked.  He eventually had surgery.

Pablos Zamora, the employer’s maintenance supervisor, testified that when the claimant returned from lunch on May 13, 2002, he reported a “very hard back pain” which he did not attribute to anything in particular.  Mr. Zamora testified that approximately two weeks later, the claimant stated that he felt he had hurt his back moving a refrigerator.  Mr. Zamora stated that the claimant missed a few days from work in May 2002 and then returned to his regular duty without complaint until January 13, 2003.  Mr. Zamora testified that the claimant’s regular duties include lifting, bending, pushing, and climbing.

Mr. Zamora testified that he did not remember moving a refrigerator with the claimant on the morning of May 13, 2002, but after reviewing his files he has nothing to dispute that the refrigerator move took place.  He does remember changing filters with the claimant that morning.  He testified that they went to lunch around 1:00 p.m., and at 2:30 or 3:00 p.m., the claimant reported that he had taken a nap after lunch and had a difficult time getting up and had a “very bad back pain.”  Mr. Zamora stated that the claimant tried to work that afternoon but could not, so he asked the claimant to report to the manager.

Escarlet Torres, resident manager for the employer, testified that she handles workers’ compensation claims.  She testified that between 2:30 and 3:00 p.m. on May 13, 2002, the claimant reported a “really sharp pain on his back that he couldn’t even walk.”  Ms. Torres testified that she asked the claimant if he was doing anything “unusual,” and the claimant replied that he “was just doing his normal work.”  She testified that lifting a refrigerator would not have been “unusual” work for the claimant; rather, it would be part of his normal routine.

A translation of the claimant’s recorded statement, admitted as Defendants’ Exhibit 1, confirms the incident of moving the refrigerator with pain beginning on his break.

The medical record reveals that the claimant sought treatment at Virginia Hospital Center on May 13, 2002, where triage personnel reported a history of “lifting a refrig. this am @ work.”  The personnel reported a complaint of back pain and numbness in his extremities.  The claimant was diagnosed with a lumbosacral sprain.

On May 15, 2002, the claimant saw Dr. Ricardo Fernandez, who reported a complaint of back pain after “lifting refrigerator several days ago.”  Dr. Fernandez diagnosed back pain and asthma.  For the back problem, he prescribed Celebrex and noted that the claimant should return if the problem did not resolve.  The claimant returned on September 16, 2002, with back pain and some radiation to the left leg.  He also complained of increased allergies.  Dr. Fernandez diagnosed lumbar radiculopathy.  The claimant returned on January 13, 2003, reporting that the day before he awoke with severe pain in his low back radiating to his left leg and foot.  He excused the claimant from work, ordered an MRI, and referred him to Dr. Dennis A. Carlini, orthopedic surgeon, who examined the claimant on January 17, 2003.  Dr. Carlini reported that the claimant had a seven-month history of low back pain with bilateral leg radiation, worse on the left.  He also reported that the MRI showed disc herniations at L4-5 and L5-S1.

After an unsuccessful epidural, Dr. Carlini referred the claimant to Dr. Alan G. Schreiber, who reported that the claimant “had an injury moving furniture to the third floor in May of last year” with back pain “off and on since that time.”  Dr. Schreiber subsequently performed surgery

On Review, we note the claimant has the burden of proving that his injury was caused by an identifiable incident or sudden precipitating event causing an obvious, sudden mechanical or structural change in the body.  Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989); Lane Co. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985).  ”Causation is an essential element which must be proven by a claimant in order to receive an award of compensation for an injury by accident.”  AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881 (1990).  However, “it is not necessary in establishing causation that the pain or other physical manifestation of injury be contemporaneous with the incident in employment to prove that the injury arose out of the employment.”  Morris v. Morris, 4 Va. App. 193, 200, 355 S.E.2d 892, 896 (1987), rev’d on other grounds, 238 Va. 578, 385 S.E.2d 858 (1989).

We find that the claimant credibly described a significant incident in carrying a refrigerator up steps on May 13, 2002.  Although he felt no pain, he did feel a “bump’ or an “impact” in his back at the time.  The claimant’s supervisor, Mr. Zamora, did not dispute that the claimant moved a refrigerator that morning.  Ms. Torres merely asked if the claimant did anything “unusual” that morning, to which the claimant responded in the negative.  Ms. Torres admitted that it would not have been unusual for the claimant to be moving a refrigerator in the course of his employment.  We find the record supports the claimant’s testimony at the hearing concerning the incident.

We further find causation established.  As noted above, it is not necessary for the claimant to have felt pain at the time he moved the refrigerator.  The claimant’s pain developed over the course of the afternoon after moving the refrigerator.  He attributed his pain to this event at the hospital later that same day and at subsequent medical visits. The medical reports consistently report a history of the incident.  Moreover, in contrast to the employer’s assertions on Review, the claimant did seek further medical treatment prior to January 2003.  The claimant saw Dr. Fernandez in May and September 2002.  At the latter visit, it is evident that the claimant’s condition was worsening.  The claimant also testified that between May and September, his medications were refilled.  The medical reports confirm that the claimant’s back problems persisted and worsened, despite his continuing to work until his pain was so bad that he could no longer work in January 2003.

After careful Review, we find the evidence amply supports the Deputy Commissioner’s findings that the claimant sustained a compensable injury by accident arising out of and in the course of his employment on May 13, 2002, and that the incident caused the claimant’s disability. The Opinion below is AFFIRMED.

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.

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.

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.

IN THE WORKERS’ COMPENSATION COMMISSION

MARIA T. BARBA, Claimant

Opinion by the

Commission

v.                                                                                                                              VWC File No. 213-10-55

TERESA ENRIQUEZ/CLEAN MASTER TOTAL BLDG., Employer

- NO RECORD OF INSURANCE -

KENNETH R. BRADY T/A JANIPRO, Employer

- NO RECORD OF INSURANCE -

Daniel P. Barrera, Esquire

1650 King Street, # 505

Alexandria, VA  22314

For the Claimant

(Copy sent Priority Mail)

Michael Hadeed, Jr., Esquire

5501 Backlick Road, Suite 220

Springfield, VA  22151

For Teresa Enriquez/Clean Master Total Bldg.

(Copy sent Priority Mail)

Edward H. Grove, Esquire

Brault, Palmer, Grove, White & Steinhilber, LLP

P.O. Box 1010

Fairfax, VA 22038-1010

For Kenneth R. Brady T/A Janipro

(Copy sent Priority Mail)

Jimese Pendergraft Sherrill, Esquire

10521 Judicial Drive, Suite 300

Fairfax, VA  22030-3109

For the Uninsured Employer’s Fund

(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 at the request of Kenneth R. Brady T/A Janipro (“Brady”) for Review of the Deputy Commissioner’s assessment of a fine associated with Brady’s failure to obtain workers’ compensation insurance.  We AFFIRM as modified.

On November 5, 2003, the Commission issued a show cause order directing Brady to appear before the Commission and show why he should not be fined in accordance with Code 65.2-805 for failing to have workers’ compensation insurance.  The Deputy Commissioner conducted two hearings in connection with the Show Cause Order and the underlying claim of the claimant, Ms. Barba.

The evidence is summarized here only to the extent necessary to address the issue considered on Review.

Brady testified that he is self-employed and operates a business cleaning offices.  He explained that he has approximately 18 clients.  He also indicated that he has a month-to-month contract with Gold’s Gym to clean two of that company’s gym facilities.

Brady denied performing any of the actual cleaning of his client’s offices or facilities.  Instead, he explained that he subcontracts with Teresa Enriquez/Clean Master to perform the actual work of cleaning.

Brady indicated that he has liability insurance “just for myself.”  He denied ever having workers’ compensation insurance.  He also indicated that he was “pretty sure” Ms. Enriquez never showed him proof that she had workers’ compensation insurance but that she did provide him with a certificate showing that she had liability insurance.  In addition, Brady admitted that he never required Ms. Enriquez to provide him with proof of workers’ compensation insurance.

Brady acknowledged that he was not aware of the number of employees Ms. Enriquez had in September of 2002 when the claimant, Ms. Barba, suffered a workplace injury.

Teresa Enriquez testified that her cleaning business performed cleaning services for Brady at Gold’s Gym as a subcontractor.  She denied having any actual employees and indicated that she considered Ms. Barba to be an independent contractor.¹

Brady argues on Review that the $5,000 fine assessed against him by the Deputy Commissioner be reversed, suspended with terms, or modified substantially because there is no evidence of any malfeasance on the part of Brady.  Specifically, he contends that, had he asked Ms. Enriquez regarding her number of employees, he would have been told his subcontractor had fewer than the number of employees requiring workers’ compensation coverage.  We find no error in the Deputy Commissioner’s assessment of a penalty against Brady.

Code 65.2-800 provides that every employer subject to the Act shall insure payment of compensation.  Code 65.2-804 provides that every employer subject to the Act shall file with the Virginia Workers’ Compensation Commission evidence of proof of insurance.  Code 65.2-805 provides that if such an employer fails to comply with the provisions of Code 65.2-804, Code of Virginia, he shall be punished by a fine of not less than $500.00 nor more than $5,000.00.

As the Court of Appeals explained in Last v. Virginia State Bd. of Medicine, 14 Va. App. 906, 421 S.E.2d 201 (1992):

In its ordinary signification, “shall” is a word of command, and is the language of command, and is the ordinary, usual, and natural word used in connection with a mandate.  In this sense “shall” is inconsistent with, and excludes, the idea of discretion, and operates to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved … unless an intent to the contrary appears; but the context ought to be very strongly persuasive before it is softened into a mere permission.

Id. at 911, 421 S.E.2d at 205 (quoting Andrews v. Sheperd, 201 Va. 412, 414, 111 S.E.2d 279, 281 (1959)).  Thus, although there is some discretion regarding the amount of the fine to be imposed, a fine’s issuance is mandatory when, as here, an “employer” under the Act fails to obtain workers’ compensation coverage.  See Rosas v. African Art Gallery, VWC File No. 186-06-18 (1998).

Given the facts of this case, we also agree with the Deputy Commissioner’s conclusion that a substantial fine should be imposed against Brady.  The record reflects that Brady operated a cleaning business by relying upon the employees of a subcontractor. Brady candidly admitted at the hearing that he never attempted to ascertain the number of Ms. Enriquez’s employees.  Nor did he require her to provide proof of workers’ compensation insurance.

Because his subcontractor was performing the functions of his business, we conclude that he had an obligation of ascertaining the number of employees who were actually performing the work of his cleaning business so as to determine if he was bound by the requirements of the Act as an employer.  As correctly noted by the Deputy Commissioner, Code 65.2-302, the statutory employer provision, is intended to prevent employers from escaping workers’ compensation liability and the obligation of obtaining workers’ compensation coverage simply by subcontracting away work which is part of the statutory employer’s trade, business and obligation.  From our Review of the record, we conclude that this is precisely what Brady attempted to do.

Nevertheless, we conclude that the amount of the penalty assessed by the Deputy Commissioner was somewhat excessive given the subcontractor’s belief that the claimant was an independent contractor.  Under the circumstances, we lower the fine to $3,000 on Review.

For these reasons, the June 7, 2004, Opinion of the Deputy Commissioner assessing a fine against Kenneth R. Brady T/A Janipro is AFFIRMED as modified and the fine assessed against Kenneth R. Brady T/A Janipro is hereby lowered to $3,000.

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.

c: Maria T. Barba

Teresa Enriquez/Clean Master Total Bldg.

10656 Myrtle Oak Ct.

Burke, VA 22015

Kenneth R. Brady

T/A Janipro

6208 Knollview Place

Centerville, VA 21020

Compmanagement, Inc.

P. O. Box 85631

Richmond, VA 23285

¹ The Deputy Commissioner concluded that Ms. Enriquez regularly employed three or more employees in the Commonwealth and that Ms. Barba was Ms. Enriquez’s employee rather than an independent contractor.  No party has requested Review of these findings and, therefore, they are not addressed in this Opinion.

IN THE WORKERS’ COMPENSATION COMMISSION

MARIO CELESTINO, Claimant

Opinion by the

Commission

v.                                                                                                                          VWC File No. 218-90-23

DEAN STEEL ERECTORS CO., INC., Employer

ST. PAUL FIRE & MARINE INS. CO., Insurer

Daniel P. Barrera, Esquire

1650 King Street, #505

Alexandria, Virginia 22314

for the claimant.

(Copy sent by Priority Mail)

Mark A. Stallings, Esquire

355 Crawford Parkway, Suite 520

Portsmouth, Virginia 23704

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 November 5, 2004, Opinion.  The claimant alleged a September 23, 2003, injury by accident.  The deputy commissioner awarded benefits for the period September 23 to September 29, 2003, and the employer appeals.  We AFFIRM.

The only issue before us is whether the deputy commissioner erred in failing to grant the employer’s request for a continuance of the October 7, 2004, hearing in this dispute.  The claimant was injured on September 23, 2003, and filed the Claim on May 11, 2004.  The claimant, the employer, and the insurer were notified on May 24, 2004, that the Claim was filed and certain additional information was required.  The employer and insurer failed to respond, and a Show Cause Order was issued.  On June 24, 2004, the parties were notified that the Claim was being referred to the hearing docket.  On July 19, 2004, the parties were notified that a hearing was scheduled for October 7, 2004.

In a July 27, 2004, letter, counsel for the insurer noted an appearance, and on August 13, 2004, the deputy commissioner’s office inquired if counsel also represented the employer.  On August 17, 2004, counsel responded that he represented the employer and the insurer.  In a September 3, 2004, letter, counsel for the claimant notified the Commission that it appeared that the wrong insurer had been notified.  On September 17, 2004, the deputy commissioner’s office responded, indicating that the correct insurer was notified, and that the insurer had affiliated a third party administrator.

On September 30, 2004, present counsel for the employer filed a notice of appearance.  On October 1, 2004, counsel requested a continuance, asserting that additional time was needed to prepare a defense, and to allow the employer time to assert a Code 65.2-306 defense of willful misconduct.  The deputy commissioner denied the employer’s motion, and reiterated the denial in the November 5, 2004, Opinion.  The deputy commissioner reasoned that the Claim was filed on May 11, 2004, and the hearing was scheduled on July 19, 2004, providing ample time for the employer to prepare its defense.  The employer requests Review.

The employer argues that the deputy commissioner abused his discretion in denying the continuance, reasoning that it caused irreparable harm to the employer.  (The employer made a proffer at the hearing concerning its willful misconduct defense.)  The employer further argues that the harm resulting to it far outweighs any harm caused to the claimant.

The employer does not offer an explanation as to why, when it was notified of the Claim in May 2004, and received notice of the scheduled hearing on June 24, 2004, it failed to request a continuance until October 1, 2004, less than one week before the hearing.  Counsel for the employer indicated that the insurer forwarded the file to his office on September 18, 2004, but he was on vacation and did not review the file until September 27, 2004, by which point it was too late to assert a Code 65.2-306 defense.  This leaves an approximate three-month period between June and September, however, when the employer and insurer knew of the hearing and yet did not seek a continuance.  Moreover, there was an appearance noted by additional counsel as early as July 27, 2004, which provided ample time both to request a continuance and to assert a Code 65.2-306 defense.

The employer further argues that essentially no harm would have resulted to the claimant by granting the continuance, asserting that all compensation benefits at issue already have been paid.  The employer does not take into account, however, the claimant’s medical treatment, including any follow-up treatment that may be delayed.  The issue is whether the deputy commissioner abused his discretion in failing to grant the continuance.  The Commission is charged with administering numerous claims, and the deputy commissioner, as noted in his letter denying the request, reasoned that the request came too late, considering the lengthy period of notice of the hearing.  We believe that the deputy commissioner acted within his discretion in denying the request for a continuance.  See Lukachik v. Loudoun County Sch. Bd., VWC File No. 205-60-63 (Feb. 11, 2002).

For these reasons, the November 5, 2004, Opinion is AFFIRMED.

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.

cc: Mario Celestino

580 Hawkins Street

Harrisonburg, Virginia 22801

St. Paul Fire & Marine Ins. Co.

Va. UCM

P.O. Box 3570

Brandon, Florida 33509

Dean Steel Erectors Co., Inc.

5366 N. Valley Pike

Harrisonburg, Virginia 22802

IN THE WORKERS’ COMPENSATION COMMISSION

MARIA DIAZ-MARTINEZ, Claimant

Opinion by the

• • • • • • • COMMISSION

v.                                                                                                                           VWC File No. 223-70-40

TGI FRIDAYS, Employer

INSURANCE CO. OF THE STATE OF PA, Insurer

Daniel P. Barrera, Esquire

1650 King Street, Suite 505

Alexandria, VA  22314

for the Claimant.

(Copy sent Priority Mail)

Douglas A. Seymour, Esquire

10521 Judicial Drive, Suite 300

Fairfax, VA  22030

for the Defendants.

(Copy sent Priority Mail)

REVIEW on the record before Commissioner Diamond, Commissioner Tarr, and Commissioner Dudley at Richmond, Virginia.

This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s April 5, 2006 Opinion finding the employer is responsible for treatment rendered by Drs. McDermott, Constantine, and Chung.  We AFFIRM the Opinion below.

The claimant, age 43, sustained a compensable left hand injury on April 1, 2005, while working as a cook.  The employer accepted her claim and a medical-only Award was entered by the Commission on June 27, 2005. On October 31, 2005, the claimant filed a claim for authorization of medical treatment.  The employer defended the claim on the grounds that the medical treatment is not reasonable, necessary, or causally related to the accident.

The claimant testified that following her injury her hand was swollen.  She sought treatment at Mary Washington Hospital and the Spotsylvania Emergency Center.  The claimant testified that her hand and arm problems have worsened. She cannot use her arm and she suffers pain from her hand to her neck. In May 2005, she was referred to Dr. McDermott at Fredericksburg Orthopedics, who in turn referred her to Dr. Constantine.  Dr. Constantine recommended occupational therapy and an MRI which were not approved.

The claimant testified that she also saw Dr. Chung, who prescribed Neurontin and Nortriptyline which she bought herself.  She stated that the medication improved her symptoms.  Dr. Chung recommended therapy and EMG testing which were not approved.  The claimant last saw Dr. Chung in July 2005. She does not remember the name of the doctor who referred her to Dr. Chung, but stated that “Dr. Constantine referred me to one doctor and then that doctor referred to the last doctor.”

The claimant testified that she has sought no further treatment.  She has continued to work since the accident and is currently working at Old Country Buffet.  The claimant testified that she uses one arm and does not do any strenuous work.

The few medical records in the file reveal that the claimant was treated at Medic One on April 3, 2005, after she lifted a pan three nights earlier and felt pain in her left hand.  Examination showed ecchymosis and swelling with decreased grip strength and tenderness.  X-rays showed no fracture or significant arthritic changes.  On May 7, 2005, the claimant saw Dr. Brian T. McDermott, and orthopedist, who reported that the claimant injured her left hand at TGI Fridays while lifting a heavy plate of shrimp and water.  He noted that she continued to experience pain and immobility of her wrist.  The claimant denied prior injury to her wrist.  On examination, Dr. McDermott found restricted range of motion of the wrist in all directions, crepitus with radial deviation, decreased range of motion of the ulnar two digits, and mild decreased sensation of the fifth digit.  He referred the claimant to Dr. Constantine “given the complexity of this issue.”

An Outpatient Prescription Order Form signed by or on behalf of Dr. Constantine on May 9, 2005, reflects that an MRI of the left wrist was ordered to evaluate for a TFCC tear.  A handwritten notation indicates that the insurance company denied the MRI and the patient was sent to another doctor.  An order was also generated for occupational therapy two times per week for six weeks.

On July 25, 2005, the claimant was evaluated by Dr. Raymond K. Chung, an orthopedist at a different practice.  Dr. Chung reported that a large pan of shrimp and water fell onto the claimant’s left wrist dorsally, causing the volar aspect of the wrist to be pinched on the edge of a sink.  The claimant continued to complain of pain and numbness in her hand and was unable to make a full fist.  Dr. Chung’s detailed examination findings revealed multiple areas of tenderness, weakness in the hand and wrist, colder temperature about the left arm than the right, and some slight sensory disturbances.

Dr. Chung diagnosed a left arm crush injury and regional pain syndrome, rule out compression neuropathy/neuropraxia.  He opined that the overriding feature of the claimant’s injury was pain out of proportion to the physical exam.  He also noted the temperature changes, and concluded that “she does have complex regional pain syndrome.”  Dr. Chung prescribed Neurontin and Nortriptyline as well as physical therapy and electrodiagnostic testing.

The employer obtained an evaluation by Dr. Michael O’Brien on September 28, 2005.  Dr. O’Brien reviewed the claimant’s accident and treatment history.  The claimant reported that her wrist pain was better.  She had full range of motion of her wrist and fingers.  Dr. O’Brien opined that the claimant suffered a contusion/crush injury in April 2005, and explained that those types of injuries “can lead to weird dysesthesias and sometimes RSD as indicated by the office notes.”  Dr. O’Brien saw no evidence of a TFCC tear and expected that an MRI would be normal.  He noted that the claimant might have residual RSD but was able to work.

Dr. O’Brien did not recommend therapy as the claimant was six months past the injury and her symptoms appeared to be slowly resolving.  He suggested a wrist brace for heavier activities and encouraged the claimant to use her hand “and perhaps begin an aquatics program if possible and overall grip strengthening and perhaps occasional anti-inflammatories” but he opined there was no need for future medical management.

On Review, we note that whether an employer is responsible for medical expenses depends upon: (1) whether the medical service was casually related to the industrial injury; (2) whether the medical attention was necessary; and (3) whether the treating physician issued a referral for the treatment.  WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 231, 494 S.E.2d 147, 152 (1997).  There is no issue in this case regarding proper referrals.  The issue is whether the medical services at issue were reasonable, necessary, and causally related to the work accident.

The claimant testified to continuing problems in the left hand and arm.  The fact that she has admirably continued to work is of no moment in determining whether she is entitled to medical care for her injury.  There is no suggestion in any of the medical records that the claimant sustained any injuries to her left hand and wrist other than the work injury.  Most of the medical reports in the file, including the one from Dr. O’Brien, record a history of the work accident.  Dr. O’Brien and Dr. Chung both diagnosed a contusion and crush injury.  Several physicians recommended treatment and diagnostic tests to further evaluate the injury, but the defendants inexplicably denied this employee any treatment.  Dr. O’Brien also suggests some further modalities even as he states that no further medical management is needed.  We conclude that the claimant met her burden of proving that the medical services in question were reasonable, necessary, and causally related to her April 1, 2005, work injury.   Accordingly, the Opinion below is AFFIRMED.

We further grant the claimant’s request for the assessment of attorney’s fees and costs against the defendants pursuant to Code Section 65. 2-713 for defending this claim without reasonable grounds SeeLowes of Short Pump Virginia v. Campbell, 38 Va. App. 55, 62, 561 S.E.2d 757, 760 (2002).  The claimant was awarded medical benefits in this case, but the defendants have refused to provide medical care.  As noted above, the records do not reflect any other cause for the claimant’s complaints other than the work injury.  Although the treatment recommendations have varied somewhat, all of the examining physicians including Dr. O’Brien suggested some ongoing treatment modalities.

The Deputy Commissioner awarded an attorney’s fee of $250 to claimant’s counsel to be paid directly by the claimant.  Judging this issue from the defendants’ perspective, there were no reasonable grounds to deny this employee medical care and continue to pursue this issue at the Review level. The attorney’s fee awarded below is increased to a total of $600.  The defendants are responsible for $350 of this fee.  The claimant is responsible for the remaining $250.

This matter is removed from the Review docket.

TARR, COMMISSIONER, Dissenting:

I respectfully dissent from the finding that the employer unreasonably defended the claimant’s claim for medical benefits.  In support of their defense, the employer relied on the opinion of Dr. O’Brien, who concluded that further diagnostic testing and physical therapy was unnecessary because the claimant’s condition was improving.

A party’s good faith reliance on a contrary medical opinion is not a sufficient basis for imposition of attorneys’ fees.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.

cc: Maria Diaz-Martinez

14 Lavelle Dr.

Fredericksburg, VA  22407

TGI Fridays

1160 Carl S. Silver Pkwy.

Fredericksburg, VA  22401

Insurance Co. of the State of Pa.

AIG Domestic Claims Inc.

P.O. Box 70069

Louisville, KY  40270

IN THE WORKERS’ COMPENSATION COMMISSION

SANTOS SOLIS, Claimant

Opinion by the

• • • • • • • COMMISSION

v.                                                                                                                      VWC File No. 229-33-28

L V I SERV., INC, Employer

AMERICAN HOME ASSURANCE CO., Insurer

Daniel P. Barrera, Esquire

for the Claimant.

(Copy sent Priority Mail)

Susan A. Evans, Esquire

for the Defendants.

(Copy sent Priority Mail)

REVIEW on the record before Commissioner Diamond, Commissioner Dudley, and Chief Deputy Commissioner Szablewicz at Richmond, Virginia.

This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s September 25, 2007, Opinion, finding the claimant remains disabled as a result of a work-related accident and is not able to return to pre-injury work.  We AFFIRM.

Pursuant to an Agreed Order entered on December 8, 2006, the parties stipulated that the claimant sustained a compensable low back strain on May 12, 2006, resulting in temporary total disability benefits beginning September 11, 2006, and continuing.  The parties also stipulated that the reasonable medical bills from Drs. Philips and Green would be paid through December 1, 2006, after which Dr. Danaceau would be considered the treating physician in this claim.

This matter came before the Deputy Commissioner on the Employer’s Application for Hearing filed on March 23, 2007, seeking termination of the award on the grounds that Dr. Stephen Hughes released the claimant to pre-injury work on February 28, 2007, and that the claimant’s disability is unrelated to his accident.

The medical record reveals that the claimant was initially treated at Arlington Urgent care for back pain following a work injury.  Dr. Steven Danaceau, an orthopedist, performed an examination on May 23, 2006, for an injury that occurred when the claimant, a construction worker, was doing some heavy lifting.  Dr. Danaceau diagnosed a thoracolumbar injury and prescribed physical therapy and light duty work restrictions. Spinal x-rays subsequently showed an old compression fracture. On July 10, 2006, he diagnosed a thoracolumbar injury that was slowly improving. On August 7, 2006, Dr. Danaceau recommended an MRI to evaluate the claimant’s “unchanged” symptoms.

The claimant was treated for several months by Dr. Salter and Dr. Green, for primarily thoracolumbar complaints. They prescribed conservative care similar to the treatment provided by Dr. Danaceau. On December 19, 2006, Dr. Danaceau evaluated the claimant for continued pain, tingling, and a fear that he was losing strength and balance.  He maintained the light work restrictions.

A lumbar MRI performed on January 15, 2007, showed spondylolysis at L5 and mild disc degeneration at L1-2 and L5-S1.  On January 23, 2007, Dr. Danaceau addressed the MRI results and advised the claimant there was a likely component of arthritis accounting for some of the back stiffness.  He diagnosed contusion of the thoracic spine, thoracic sprain/strain, contusion of the back, myofascial syndrome, lumbar radiculopathy, and scoliosis.  Dr. Danaceau prescribed anti-inflammatories and continuing therapy, as well as light duty.  He also recommended evaluation by a spine surgeon to determine if surgery was needed, and treatment by a pain management specialist.

Dr. Steven S. Hughes, an orthopedist, evaluated the claimant on February 28, 2007, and reviewed some medical records and diagnostic test reports.  On examination Dr. Hughes found four of five Waddell’s signs and concluded that symptom magnification was present.  He also diagnosed remote resolved lumbar strain, congenital spondylolisthesis, and acquired spondylolisthesis.  Dr. Hughes did not find evidence of a disc herniation or any bulging discs that significantly impact the canal.  He opined that the claimant’s treatment plan was not reasonable or necessary and that the soft tissue injury had resolved.  Dr. Hughes further opined that the claimant “is able to return to work in a full duty capacity at this time without restrictions and limitations.”

On March 6, 2007, Dr. Danaceau noted that the claimant’s lumbar pain occurred as a result of a work injury.  He reported that the claimant has some good days and some bad days and reiterated the same treatment recommendations.  On June 4, 2007, Dr. Danaceau imposed permanent light duty restrictions. Dr. Hughes indicated in August 1, 2007, responses to a check-the-box letter, that he disagrees with Dr. Danaceau’s opinion.

At the hearing, the claimant testified through an interpreter that he is 43 years old with one year of education.  He denied any prior back problems.  He testified that since the accident, he has had a lot of back pain and has been restricted to light duty.

On Review, we note the employer bears the burden of proving by a preponderance of the evidence that the claimant is no longer disabled as a result of his industrial injury and can return to work.  See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987); Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986).  The question is whether the claimant is able to fully perform his pre-injury duties.  Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985).  The employer may satisfy its burden by proving that no restrictions have been placed on the claimant’s ability to work.  Fingles Co. v. Tatterson, 22 Va. App. 638, 642, 472 S.E.2d 646, 647 (1996). Generally great weight should be given to the evidence from an attending physician. Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 580, 466 S.E.2d 127, 129 (1996) (citation omitted).

After careful Review of the record, we find the Deputy Commissioner appropriately weighed the competing medical opinions in this case.  Dr. Danaceau has treated the claimant since May 2006, and has restricted him to light duty based on symptoms that have continued since the work accident.  The claimant denied suffering back problems prior to the accident.  Dr. Hughes believes the claimant has no condition that warrants medical treatment or work restrictions, but he based his opinion on one evaluation.  We accord greater weight to the opinion of Dr. Danaceau, the treating orthopedist, and therefore find the employer has failed to meet its burden of proving that the claimant�s disability is no longer related to the work accident or that he is capable of pre-injury work.

Accordingly, the Opinion reinstating the claimant’s benefits is AFFIRMED.

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.

cc: Santos F. Solis

LVI Serv., Inc.

American Home Assurance Co.

AIG Domestic Claims, Inc.

Present:Judges Benton, Bumgardner and Kelsey Argued at Alexandria, Virginia

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

MARIO BALDIVIESO

v.

LABOR FINDERS OF VIRGINIA, INC.

AND

AMERICAN CASUALTY COMPANY

MEMORANDUM OPINION  BY v. Record No. 0295-04-4

JUDGE JAMES W. BENTON, JR. FEBRUARY 8, 2005

Joshua M. Wulf (Semmes, Bowen & Semmes, on briefs), for appellants.Daniel P. Barrera on brief, for appellee. Labor Finders of Virginia, Inc. and its insurer contend the Workers’ Compensation Commission erred in ruling that Mario Baldivieso’s injury arose out of his employment. We disagree and affirm the award.

I. On appeal from the commission’s decision, we view the evidence in the light most favorable to Mario Baldivieso, who prevailed before the commission. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E. 2d 538, 539 (2003). So viewed, the evidence proved Waste Management contacted Labor Finders on June 25, 2002 and arranged for the services of Baldivieso as a temporary laborer on one of its trash collection trucks in Leesburg, Virginia. When Waste Management’s operations manager drove Baldivieso and other temporary workers to trucks at 7:45 a.m. to begin the day’s work, Baldivieso was wearing several shirts, which were* Pursuant to Code § 17.1-413, this opinion is not designated for publication. – 2 – described as a tee shirt underneath a long-sleeved, light flannel shirt. Using a bilingual worker to translate into Spanish, the manager urged Baldivieso and the other temporary workers to be wary of the potential danger of the heat. Waste Management supplied a loose fitting, nylon safety vest for Baldivieso to wear during his work.

At 8:30 a.m., Baldivieso began working on a truck driven by Kiki Gouveia. Baldivieso’s duties consisted of lifting trash cans and dumping the trash in the rear of the truck. As the truck traversed a route that included 750 residential homes and commercial sites, Baldivieso stood on the back step of the garbage truck, where there was no shade. For each unit, the trash ranges from one bag to three or four cans. Gouveia testified that the trash bags weighed an average of 15 to 20 pounds; the managers testified that the trash bins weighed an average of 35 to 100 pounds. Gouveia testified that when Baldivieso arrived, he had already completed part of the route and had about 600 sites remaining. He also testified that he would get out of the truck to help Baldivieso about 95% of the time and said he completed much of the “heavier lifting” himself. The manager estimated that because the driver and his helper customarily work together, Baldivieso lifted 60 or 70% of the bags. Gouveia described Baldivieso as a “slow, steady worker.” The weather was extremely hot and humid that day. The U.S. Department of Commerce recorded that the temperature reached a high of 93 degrees at Dulles Airport with extremely high levels of humidity. The manager’s report indicates the temperature reached 99 degrees in the area and was very humid.

At 11:00 a.m., Baldivieso joined Gouveia inside the truck while Gouveia drove to the unloading station. Gouveia did not use the air conditioning inside the truck during this drive or at anytime that day because it usually caused his truck to overheat. After unloading the truck, – 3 – Gouveia stopped to replenish the truck’s five gallon water cooler, which was empty, and then resumed work between 12:00 and 12:30 p.m. They did not stop for a formal lunch break because Gouveia tried to complete the route as quickly as possible. Gouveia testified that he hustled and “pushed to get [his] route completed” because his pay is the same regardless of the time he expends. Baldivieso did not eat anything during the day. Gouveia testified that they took several breaks to drink water throughout the day from the cooler mounted on the front of the truck. Although Waste Management provided Gatorade powder to aid hydration, Gouveia did not use it and preferred to fill the truck’s cooler with ice and water. Gouveia testified that Baldivieso was “drinking like a fish.”

At 4:30 p.m., with approximately 20 minutes of work remaining, Gouveia noticed that Baldivieso appeared to be having some difficulty. While he was sitting in the truck, Gouveia observed that Baldivieso was “having some problems” at the rear of the truck. When Gouveia approached Baldivieso, he appeared “disoriented,” was slurring his speech, and was shaking. Gouveia testified that he did not have any earlier indication that Baldivieso was ill; however, due to the language barrier they communicated essentially by gesturing.Gouveia called to request an ambulance to transport Baldivieso to a hospital. The hospital report indicates that Baldivieso’s temperature was 109 degrees and that he had suffered “probable heat stroke.” Baldivieso also had acute renal failure upon admission. Dr. Rosenthal later diagnosed probable brain damage. Dr. Page Fletcher diagnosed Baldivieso as having “post-traumatic dementia secondary to heat stroke.” Baldivieso has been confined to a nursing home since his release from the hospital.

The deputy commissioner found that Baldivieso performed medium to heavy labor throughout the day in hot and humid conditions. He also ruled that Baldivieso suffered a heat stroke as a result of this work activity. Relying on Imperial Trash Service v. Dotson, 18 – 4 – Va. App. 600, 445 S.E. 2d 716 (1994), the deputy commissioner ruled that the evidence proved Baldivieso suffered an injury by accident arising out of and in the course of his employment. Thus, the deputy commissioner entered an award for temporary total disability and medical benefits.

On review, the commission adopted the deputy commissioner’s summary of the evidence and rejected Labor Finders’ argument that the evidence failed to show extraordinary environmental conditions or work conditions distinguishable from other outdoor workers. This appeal followed. II. Determining whether an injury arose out of employment is a mixed question of law and fact. Norfolk Community Hospital v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576, 578 (2000). On appeal, we review questions of mixed law and fact de novo. Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002); Fairfax County School Board v. Rose, 29 Va. App. 32, 37, 509 S.E. 2d 525, 527 (1999).

To receive compensation for injuries, an employee must establish by preponderance of the evidence that he suffered an injury by accident “arising out of and in the course of [his] employment.” Code § 65.2-
101. To prove an injury arose out of the employment, the evidence must establish that the “conditions of the workplace . . . caused the injury.” Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E. 2d 305, 306 (1989). In making this determination, we employ the “actual risk test” to determine whether the employer exposed the employee to “the particular danger causing the injury, notwithstanding the public’s exposure generally to similar risks.” Kjellstrom v. Saunders, 42 Va. App. 673, 678, 594 S.E.2d 281, 283 (2004).[The] “actual risk test,” mean[s] that the employment must expose the employee to the particular danger causing the injury, notwithstanding the public’s exposure generally to similar risks.

Thus, if there is a causal connection between [the employee's] – 5 – injury and the conditions of her employment, then her injury arose out of her employment.Combs v. Virginia Power, 259 Va. 503, 510, 525 S.
E.2d 278, 282 (2000) (citation omitted). The principle is well established that compensation may be granted to an employee who suffered heat stroke as a result of exposure during working conditions. In Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E. 2d 725 (1944), an employee collapsed while removing coke from a hot oven for more than ten hours. The Supreme Court affirmed the award of compensation, concluding that the employee’s death “was the result of the conditions under which [he] was required to perform the duties of his employment.” Id. at 221, 28 S.E. 2d at 729. Noting that Byrd is the “leading heat stroke case,” we applied its rationale in Kjellstrom, where the employee was working as a “traffic flagger” on asphalt in extremely hot and humid conditions. 42 Va. App. at 679, 594 S.E.2d at 283. The evidence proved the employee was unable to take a break and collapsed after working seven hours. Affirming the award of compensation, we noted that “the commission found his exposure to the sun was beyond the norm” since he worked “in the open, in the sun, on asphalt and concrete, with no relief afforded by [his] employer.” Id. at 680, 594 S.E. 2d at 284.Labor Finders argues that Baldivieso’s injury did not arise out of the employment because the evidence is insufficient to support a finding of extraordinary working conditions. In Dotson, we addressed a factual circumstance almost identical to this case, where the employer similarly argued that “the nature of [the employee's] duties did not place him at greater risk for heatstroke beyond that to which the public is normally exposed.” 18 Va. App. at 603, 445 S.E. 2d at 718. There, we held the record supported the commission’s finding, including the following:The commission found that Dotson’s employment exposed him to hazards over and above those to which the public is exposed. The commission noted that “the public at large was not working – 6 – within the confines of a [non-air-conditioned] truck, repeatedly getting into and out of a truck, nor emptying from 350 to 400 containers into [it] . . . . This work was performed in temperatures which had reached almost 90 degrees at the time Dotson collapsed. In addition, the humidity had reached approximately 57 percent.” The commission could find, as it did, that the combination of the heat, the humidity, the physical exertion, and working in the non-air-conditioned truck caused Dotson to become dehydrated and to suffer a heatstroke. Id. at 604-05, 445 S.E. 2d at 719. As the Supreme Court has often repeated, an injury “arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.” Combs, 259 Va. at 509, 525 S.E. 2d at 282 (citation omitted); accord United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E. 2d 892, 893 (1985); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In this case, the commission found that Baldivieso suffered a heatstroke under similar conditions as Dotson and that it was caused by the working conditions. In particular, the commission made the following findings:[Baldivieso] 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.” [Baldivieso] 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, [Baldivieso's] temperature at the scene was noted to be 109 degrees, which obviously is not a condition commonly experienced by other outdoor workers.. . . In conclusion, the evidence was clear that [Baldivieso] 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 – 7 – 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 hold that this credible evidence in the record supports the commission’s findings that Baldivieso’s injury by accident arose out of his employment. Accordingly, we affirm the commission’s award.Affirmed.

IN THE WORKERS’ COMPENSATION COMMISSION

RIGOBERTO V. RODRIGUEZ, Claimant

Opinion by DUDLEY

Commissioner

v.   VWC File No. 205-63-07

FACCHINA CONSTRUCTION COMPANY, INC., Employer

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Insurer

Daniel P. Barrera, Esquire

for the Claimant.

(by priority mail)

Mark D. Crawford, Esquire

for the Defendants.

(by priority mail)

REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.

The employer has requested Review of the Deputy Commissioner’s May 19, 2003, Opinion awarding temporary total disability benefits and medical benefits.  The employer assigns error to the findings that the claimant injured his neck and left shoulder on May 18, 2001.  We affirm.

The claimant, a carpenter foreman, sustained a compensable injury by accident to his larynx on May 18, 2001.  The employer paid temporary total disability benefits from May 19 through July 8, 2001.

On October 30, 2002, the claimant sought benefits for injuries to his neck and left shoulder, in addition to the larynx injury.  The employer defended on the basis that there was no compensable injury to the neck or left shoulder.

At the Hearing, the claimant testified that on the day of the accident, he was stripping a wooden board.¹ He stated that:  [T]he board broke and it hit me on my neck. (Tr. at 5).  The claimant indicated that the impact occurred under his chin in his neck area.  He said that he felt pressure from the board in his left arm and he could not hold the wood down.  The claimant described that when the board broke, it destroyed [his] neck and he fell backwards (Tr. at 7).  He explained that his shoulder twisted backwards and that he experienced a numbing pain.

The claimant explained that he was hospitalized after the incident.  He said that his major complaints were problems with his neck and arm.  The claimant testified that his treating physicians primarily focused upon reconstructing his throat.

Steven W. Ludden, supervisor, testified to working with the claimant when he returned to work after the injury.  Ludden said that he never mentioned injuring his shoulder.  He stated that the claimant only commented about his throat and neck.

Timothy Berres, safety officer, testified that the claimant complained to him about his neck and throat problems on February 8, 2002.  Berres stated that he discussed the injuries with him and that he reported shoulder problems.  He did not recall the claimant specifying what caused the shoulder condition.  Berres said that he observed him lifting objects, despite his claim that he could not lift due to his shoulder injury.

Carlos R. Lizama, project superintendent, testified to speaking with the claimant nearly every morning.  Lizama stated that he complained about his hurt throat, but no other injuries.  He denied that the claimant mentioned a neck problem.

The pertinent medical record reflects that on May 18, 2001, the claimant received treatment for a fractured larynx.  This treatment while hospitalized included a tracheotomy, laryngoscopy, esophagoscopy, open reduction of the laryngeal fractures, and a stent placement.  The hospital discharged the claimant to his home on May 22, 2001.

Dr. Deborah J. Doyle, otolaryngologist, assisted in the claimant’s May 18, 2001, surgeries.  Dr. Doyle’s office began monitoring the claimant’s recovery in July 2001.  On January 18, 2002, the claimant complained to Dr. Doyle about pain and weakness of the posterior neck which radiated down his left arm.  Dr. Doyle recommended an orthopedic consultation.

Dr. Tushar C. Patel, orthopedic surgeon, evaluated the claimant on January 31, 2002, for neck and left upper extremity complaints. The claimant reported that he fractured his larynx in an industrial accident on May 18, 2001, and that [h]e has had pain in his left arm. Dr. Patel diagnosed rotator cuff tendonitis.

On March 11, 2002, the claimant described suffering left shoulder and arm weakness to Dr. Doyle.  Dr. Doyle diagnosed neck and arm pain with a possible compression of the cervical spine.  She recommended an MRI scan of the claimant’s cervical spine and shoulder.

On June 5, 2002, Dr. Doyle responded to a question by claimant’s counsel.  She affirmed that the recommended MRI scan was causally related to the industrial accident.

On August 8, 2002, Dr. Patel advised that he had evaluated the claimant for neck pain with radiation down his left upper extremity.   Dr. Patel stated that a recent MRI scan showed mild disc bulges at the C4-C5 level.   Dr. Patel concluded that the claimant’s problems emanated from his left rotator cuff, which was a result of his fall and trauma.

An MRI scan was taken on August 14, 2002. The history noted that the claimant suffered left shoulder symptoms for past year.  The patient sustained a work-related injury.  No prior shoulder surgery.  The study showed tendinosis, perhaps a small tear in the superior glenoid labrum, and degenerative arthrosis in the left acromioclavicular joint.

Dr. Robert M. Dombrowski, orthopedist and associate of Dr. Patel, began treating the claimant on September 5, 2002, for complaints of shoulder pain. The claimant informed Dr. Dombrowski about the industrial accident and that the board forced his arm up in an abduction position.  Dr. Dombrowski diagnosed a partial rotator cuff tear and a superior labral tear.  Dr. Dombrowski recommended physical therapy and medication.

By letter dated November 5, 2002, Dr. Doyle wrote that she had recently evaluated the claimant for follow-up of a laryngeal fracture and shoulder trauma from an accident which occurred at work on May 18, 2001.   Dr. Doyle diagnosed dysphagia, throat tightness, a tethered scar, and left shoulder pain and trauma.  She suggested that the claimant participate in physical therapy for his shoulder condition.

On November 27, 2002, Dr. Patel responded to the claimant’s counsel’s question.  He affirmed that the claimant’s left arm and shoulder complaints were proximately caused by the industrial accident.

Dr. Joseph D. Linehan, orthopedic surgeon, performed an independent medical examination of the claimant on January 2, 2003.    The claimant told Dr. Linehan that the board broke and struck him in the throat and left shoulder.   He complained of left shoulder pain and denied suffering a previous injury to the shoulder.  Dr. Linehan opined that the claimant’s shoulder symptoms were not related to the industrial accident.  He explained:

[N]o where in the medical records do I find any reference to pain in the shoulder at the time of the original injury or in the physical therapy following his surgery for a fractured larynx.  The first reference to shoulder problems appears to be during a visit to . . . Dr. Patel.

. . . .

If there was indeed an acute injury to the left shoulder in the accident of May 18, 2001, there would be documentation of shoulder injury/pain in the contemporaneous medical records.  Additionally, the x-rays of the left shoulder show an old healed fracture of the left clavical, which could predispose to AC arthritis at some point later.

The Deputy Commissioner determined that the claimant proved that his compensable injury by accident caused injuries to his neck, throat/larynx, and left shoulder.  He granted more weight to the opinions of Dr. Doyle, Dr. Patel, and Dr. Dombrowski.

We initially note that we decline to assess an attorney’s fee and costs against the employer as requested by the claimant within his written statement.   We are not persuaded that the employer, from its prospective, defended or filed an appeal based on unreasonable grounds.  See Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 427 S.E.2d 215 (1993).

Hence, we consider the merits of the case.  The claimant bears the burden of proving that his shoulder and neck complaints are causally related to the industrial accident.  Watkins v. Halco Engineering, Inc., 225 Va. 97, 300 S.E.2d 761 (1983). The Commission relies primarily on medical evidence to determine the mechanism or cause of an injury.  Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968).

The record indeed reflects that the claimant did not mention shoulder or neck pain (separate from his larynx symptoms) to his treating physicians after the May 2001 injury by accident for many months.  In fact, it appears that his first complaints were voiced to Drs. Patel and Doyle in January 2002.  However, the claimant continued to report these symptoms, and his treating physicians related the complaints to the compensable accident.  The claimant never indicated or suggested that there was another cause of his symptoms.

Significantly, Dr. Patel and Dr. Doyle reported in November 2002 that the claimant’s shoulder condition resulted from the industrial accident.  Similarly, Dr. Doyle ordered an MRI scan of the shoulder/cervical spine and related the need for this diagnostic study to the accident.  This medical evidence is more persuasive than the testimony of co-workers who asserted that the claimant did not tell them about neck or shoulder complaints in relation to the injury.

Dr. Linehan disputed that the claimant’s shoulder condition was causally related to the industrial accident.  The Deputy Commissioner weighed the conflicting medical evidence and gave more weight to the claimant’s treating physicians.  We agree with this assessment, and find no grounds to reverse the Deputy Commissioner’s determination. See Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991) (Medical evidence is subject to the Commission’s consideration and weighing.).

The Opinion below is AFFIRMED, with the modification that the attorney’s fee to be paid by the claimant to Daniel P. Barrera, Esquire, is increased to a total of $750.

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.

cc: Mr. Rigoberto V. Rodriguez

7600 Oxon Hill Road

Oxon Hill, MD 20745

Facchina Construction Company, Inc.

9320 W & W Industrial Road

La Plata, MD 20646

Hartford Accident and Indemnity Company

Workers’ Compensation Claim Center

P.O. Box 1097

Hunt Valley, MD 21030

¹ Kathy Funes translated for the claimant at the Hearing.

A typical scenario is someone who falls in a store, and is injured. The manager of the store is called, along with an ambulance, and before the ambulance arrives the injured victim provides information to the store manager, and then is taken from the store on a stretcher. Once the injured accident victim begins to call the store, there is no response from the store and all the while the medical expenses begin to mount. By the time the injured party calls a lawyer, it might very well be too late to help.

By and large, the owner of a commercial establishment (i.e. a store) will be responsible to someone on their property if the store owner or its employees knew or should have known about a defect on the premises which could reasonably be expected to cause injury.

What might be a defect? If there is produce all over the floor of the grocery store which hasn’t been cleaned up; or water on the floor from a chronically leaking refrigerator/freezer; loose/missing floor tiles; a spill of some liquid on the floor which has been tracked through the store without anyone taking the time to clean it up, even a bathroom that hasn’t been cleaned with wet, slippery floors. The key in any of these cases is that the store’s employees knew or should have known about the dangerous condition.

In Virginia, Maryland, and Washington, D.C., these types of claims are problematic as all three of these jurisdictions are contributory negligence jurisdictions. If the injured accident victim caused or contributed to their injury, then their claim is barred. Any large chain store in the Washington, D.C. metropolitan area has polices in place to minimize their incidence of injuries. Bathrooms are checked every 30 minutes, aisles are checked and cleaned if necessary, broken/leaking equipment is taken out of harm’s way. When someone is hurt, there are set procedures in terms of how to deal with the injured party and what types of information they try to elicit from the injured victim before he or she leaves the store. In many instances the store manager will encourage the injured victim to go to the hospital to make sure that the victim can’t come up with new complaints later on.

One of the most important factors in any premise liability case is what caused the fall. Without some smoking gun as to why the person fell, it becomes difficult, if not impossible to prove liability on the part of the commercial establishment. One of the best results I was able to accomplish was a case where the woman saved her clothes following her fall at Walmart. The fact that they had become soaked with the dish detergent that had spilled in the aisle went a long way towards proving our case and allowed us to obtain a good result

In a personal injury claim , the injured party claims against the negligent party for reimbursement of past and future medical expenses, pain and suffering and inconvenience, past and future lost wages, loss of earning capacity, compensation for permanent injury. In a workers’ compensation claim, the employer and its insurance carrier pay 100% of the injured employee’s lifetime medical expenses; 66 2/3% of the wages while the injured employee is taken out of work by their treating physician, and depending on the circumstances, compensation for the employee’s permanent injury. As is plainly evident, there are some areas where workers compensation and liability claims overlap.

Take for example a truck driver who is injured in an accident. His most immediate need is for medical treatment and for wage benefits so he can support his family. Assuming he qualifies as an employee, should he apply for workers compensation, he should receive his medical care paid for as well as a weekly benefit for the time he is out of work.

If that same truck driver makes a claim for injuries against the responsible driver, he should eventually receive lost wages, medical expenses, and all the other damages available in a personal injury claim. It is at this point that there is a collision between workers compensation and personal injury claims. Once the truck driver tries to settle his injury case, the workers compensation insurance carrier will complain that it is not fair that the injured worker receives payment of his medical expenses, and then recovers them a second time in the personal injury claim. The same is true for lost wage payments and payment of permanent partial disability.

This right of the workers compensation insurance carrier to claim for a reimbursement for what they paid in connection with a worker’s claim against a third party is called subrogation. Generally, workers compensation laws grant the employer and their insurance a lien on the recovery of the injured worker. At the point that there is a proposed settlement of the personal injury claim there is a need to try to negotiate the workers compensation lien, which usually requires some coordination between the two claims. Having one lawyer who handles both claims is in my opinion preferable to having two lawyers trying to work together to maximize the injured party’s recovery. One lawyer handling both claims is too simple a solution for what is otherwise a somewhat complicated problem.

There are other posts which speak about what to do if your involved in a Virginia Workers’ Compensation claim. Many people will choose to represent themselves. The Virginia Workers’ Compensation defense lawyers, who I deal with on a daily basis, speak about how they have to deal with unrepresented claimants, and generally it is the defense lawyer who has the upper hand. It is unfortunate the some people feel so strongly about lawyers that they cannot retain one in their time of need.

Which brings me back to the title of this post, Alexandria Workers Compensation lawyers helping injured workers. When we start our representation of  an injured worker, we have no way of knowing whether your claim will be meritorious or not. We have no way of knowing whether you have suffered a permanent injury, and we we can’t tell whether you will ever need surgery. Yet, we might accept your case, and if we do, we will guide you, possibly for years, with only minimal attorneys fees being paid to the lawyer. In fact, we might not receive any attorney fees until the case finally settles, and the client never has to directly pay the lawyer a dime. We help injured workers on a daily basis, and we can help you too. Call, or contact us for a free consultation.

Who Should Have Hip Replacement Surgery?

People with hip joint damage that causes pain and interferes with daily activities despite treatment may be candidates for hip replacement surgery. Osteoarthritis is the most common cause of this type of damage. However, other conditions, such as rheumatoid arthritis (a chronic inflammatory disease that causes joint pain, stiffness, and swelling), osteonecrosis (or avascular necrosis, which is the death of bone caused by insufficient blood supply), injury, and bone tumors also may lead to breakdown of the hip joint and the need for hip replacement surgery.

In the past, doctors reserved hip replacement surgery primarily for people over 60 years of age. The thinking was that older people typically are less active and put less stress on the artificial hip than do younger people. In more recent years, however, doctors have found that hip replacement surgery can be very successful in younger people as well. New technology has improved the artificial parts, allowing them to withstand more stress and strain and last longer.

Today, a person’s overall health and activity level are more important than age in predicting a hip replacement’s success. Hip replacement may be problematic for people with some health problems, regardless of their age. For example, people who have chronic disorders such as Parkinson’s disease, or conditions that result in severe muscle weakness, are more likely than people without chronic diseases to damage or dislocate an artificial hip. People who are at high risk for infections or in poor health are less likely to recover successfully. Therefore they may not be good candidates for this surgery. Recent studies also suggest that people who elect to have surgery before advanced joint deterioration occurs tend to recover more easily and have better outcomes.

What Are Alternatives to Hip Replacement?

Before considering a total hip replacement, the doctor may try other methods of treatment, such as exercise, walking aids, and medication. An exercise program can strengthen the muscles around the hip joint. Walking aids such as canes and walkers may alleviate some of the stress from painful, damaged hips and help you to avoid or delay surgery.

For hip pain without inflammation, doctors usually recommend the analgesic medication acetminophen (Tylenol * ).

For hip pain with inflammation, treatment usually consists of nonsteroidal anti-inflammatory drugs, or NSAIDs. Some common NSAIDs are aspirin and ibuprofen (Motrin, Advil). If you need to take NSAIDs on a long-term basis or at doses that are higher than those obtainable over the counter, you should do so only under a doctor’s supervision. When neither NSAIDs nor analgesics are sufficient to relieve pain, doctors sometimes recommend combining the two. Again, this should be done only under a doctor’s supervision.

In some cases, a stronger analgesic medication such as tramadol or a product containing both acetaminophen and a narcotic analgesic such as codeine may be necessary to control pain.

* Brand names included in this booklet are provided as examples only, and their inclusion does not mean that these products are endorsed by the National Institutes of Health or any other Government agency. Also, if a particular brand name is not mentioned, this does not mean or imply that the product is unsatisfactory.

Topical analgesic products such as capsaicin and methylsalicylate may provide additional relief. Some people find that the nutritional supplement combination of glucosamine and chondroitin helps ease pain. People taking nutritional supplements, herbs, and other complementary and alternative medicines should inform their doctors to avoid harmful drug interactions.

In a small number of cases, doctors may prescribe corticosteroid medications, such as prednisone or cortisone, if NSAIDs do not relieve pain. Corticosteroids reduce joint inflammation and are frequently used to treat rheumatic diseases such as rheumatoid arthritis. The downside of corticosteroids is that they can cause further damage to the bones in the joint. Also, they carry the risk of side effects such as increased appetite, weight gain, and lower resistance to infections. A doctor must prescribe and monitor corticosteroid treatment. Because corticosteroids alter the body’s natural hormone production, which is essential for the body to function, you should not stop taking them suddenly, and you should follow the doctor’s instructions for discontinuing treatment.

Sometimes, corticosteroids are injected into the hip joint. A joint lubricant such as Hyaluronan may also be injected into the hip joint to relieve pain.

If exercise and medication do not relieve pain and improve joint function, the doctor may suggest a less complex corrective surgery before proceeding to hip replacement. One common alternative to hip replacement is an osteotomy. This procedure involves cutting and realigning bone, to shift the weight from a damaged and painful bone surface to a healthier one. Recovery from an osteotomy takes 6 to 12 months. Afterward, the function of the hip joint may continue to worsen and additional treatment may be needed. The length of time before another surgery is needed varies greatly and depends on the condition of the joint before the procedure.

What Does Hip Replacement Surgery Involve?

The hip joint is located where the upper end of the femur, or thigh bone, meets the pelvis, or hip bone. A ball at the end of the femur, called the femoral head, fits in a socket (the acetabulum) in the pelvis to allow a wide range of motion.

During a traditional hip replacement, which lasts from 1 to 2 hours, the surgeon makes a 6- to 8-inch incision over the side of the hip through the muscles and removes the diseased bone tissue and cartilage from the hip joint, while leaving the healthy parts of the joint intact. Then the surgeon replaces the head of the femur and acetabulum with new, artificial parts. The new hip is made of materials that allow a natural gliding motion of the joint.

In recent years, some surgeons have begun performing what is called a minimally invasive, or mini-incision, hip replacement, which requires smaller incisions and a shorter recovery time than traditional hip replacement. Candidates for this type of surgery are usually age 50 or younger, of normal weight based on body mass index, and healthier than candidates for traditional surgery. Joint resurfacing is also being used.

Regardless of whether you have traditional or minimally invasive surgery, the parts used to replace the joint are the same and come in two general varieties: cemented and uncemented.

Cemented parts are fastened to existing, healthy bone with a special glue or cement. Hip replacement using these parts is referred to as a “cemented” procedure. Uncemented parts rely on a process called biologic fixation, which holds them in place. This means that the parts are made with a porous surface that allows your own bone to grow into the pores and hold the new parts in place. Sometimes a doctor will use a cemented femur part and uncemented acetabular part. This combination is referred to as a hybrid replacement.

Is a Cemented or Uncemented Prosthesis Better?

The answer to this question is different for different people. Because each person’s condition is unique, the doctor and you must weigh the advantages and disadvantages.

Cemented replacements are more frequently used for older, less active people and people with weak bones, such as those who have osteoporosis, while uncemented replacements are more frequently used for younger, more active people.

Studies show that cemented and uncemented prostheses have comparable rates of success. Studies also indicate that if you need an additional hip replacement, or revision, the rates of success for cemented and uncemented prostheses are comparable. However, more long-term data are available in the United States for hip replacements with cemented prostheses, because doctors have been using them here since the late 1960s, whereas uncemented prostheses were not introduced until the late 1970s.

The primary disadvantage of an uncemented prosthesis is the extended recovery period. Because it takes a long time for the natural bone to grow and attach to the prosthesis, a person with uncemented replacements must limit activities for up to 3 months to protect the hip joint. Also, it is more common for someone with an uncemented prosthesis to experience thigh pain in the months following the surgery, while the bone is growing into the prosthesis.

What Can Be Expected Immediately After Surgery?

You will be allowed only limited movement immediately after hip replacement surgery. When you are in bed, pillows or a special device are usually used to brace the hip in the correct position. You may receive fluids through an intravenous tube to replace fluids lost during surgery. There also may be a tube located near the incision to drain fluid, and a type of tube called a catheter may be used to drain urine until you are able to use the bathroom. The doctor will prescribe medicine for pain or discomfort.

On the day after surgery or sometimes on the day of surgery, therapists will teach you exercises to improve recovery. A respiratory therapist may ask you to breathe deeply, cough, or blow into a simple device that measures lung capacity. These exercises reduce the collection of fluid in the lungs after surgery.

As early as 1 to 2 days after surgery, you may be able to sit on the edge of the bed, stand, and even walk with assistance.

While you are still in the hospital, a physical therapist may teach you exercises such as contracting and relaxing certain muscles, which can strengthen the hip. Because the new, artificial hip has a more limited range of movement than a natural, healthy hip, the physical therapist also will teach you the proper techniques for simple activities of daily living, such as bending and sitting, to prevent injury to your new hip.

How Long Are Recovery and Rehabilitation?

Usually, people do not spend more than 3 to 5 days in the hospital after hip replacement surgery. Full recovery from the surgery takes about 3 to 6 months, depending on the type of surgery, your overall health, and the success of your rehabilitation.

What Are Possible Complications of Hip Replacement Surgery?

According to the American Academy of Orthopaedic Surgeons, more than 193,000 total hip replacements are performed each year in the United States and more than 90 percent of these do not require revision.

New technology and advances in surgical techniques have greatly reduced the risks involved with hip replacements.

The most common problem that may arise soon after hip replacement surgery is hip dislocation. Because the artificial ball and socket are smaller than the normal ones, the ball can become dislodged from the socket if the hip is placed in certain positions. The most dangerous position usually is pulling the knees up to the chest.

The most common later complication of hip replacement surgery is an inflammatory reaction to tiny particles that gradually wear off of the artificial joint surfaces and are absorbed by the surrounding tissues. The inflammation may trigger the action of special cells that eat away some of the bone, causing the implant to loosen. To treat this complication, the doctor may use anti-inflammatory medications or recommend revision surgery (replacement of an artificial joint). Medical scientists are experimenting with new materials that last longer and cause less inflammation. Less common complications of hip replacement surgery include infection, blood clots, and heterotopic bone formation (bone growth beyond the normal edges of bone). Studies are also looking at the use of bisphosphonates, ciprofloxacin, pentoxifylline, and other medications to prevent this bone resorption around the implants.

When Is Revision Surgery Necessary?

Hip replacement is one of the most successful orthopaedic surgeries performed. Studies have shown that more than 90 percent of people who have hip replacement surgery will never need to replace an artificial joint. However, because more people are having hip replacements at a younger age, and wearing away of the joint surface becomes a problem after 15 to 20 years, replacement of an artificial joint, which is also known as revision surgery, is becoming more common. It is more difficult than first-time hip replacement surgery, and the outcome is generally not as good, so it is important to explore all available options before having additional surgery.

Doctors consider revision surgery for two reasons: if medication and lifestyle changes do not relieve pain and disability, or if x rays of the hip show damage to the bone around the artificial hip that must be corrected before it is too late for a successful revision. This surgery is usually considered only when bone loss, wearing of the joint surfaces, or joint loosening shows up on an x ray. Other possible reasons for revision surgery include fracture, dislocation of the artificial parts, and infection.

What Types of Exercise Are Most Suitable for Someone With a Total Hip Replacement?

Proper exercise can reduce stiffness and increase flexibility and muscle strength. People who have an artificial hip should talk to their doctor or physical therapist about developing an appropriate exercise program. Most of these programs begin with safe range-of-motion activities and muscle-strengthening exercises. The doctor or therapist will decide when you can move on to more demanding activities. Many doctors recommend avoiding high-impact activities, such as basketball, jogging, and tennis. These activities can damage the new hip or cause loosening of its parts. Some recommended exercises are walking, stationary bicycling, swimming, and cross-country skiing. These exercises can increase muscle strength and cardiovascular fitness without injuring the new hip.

Source: National Institutes of Health

From 2001 to 2006, about 55 million children and teens (9.2 million a year) were treated at emergency departments for unintentional injuries, say researchers from the U.S. Centers for Disease Control and Prevention. Falls caused the majority of non-fatal injuries (about 2.8 million a year), while most deaths were transportation-related — about 8,000 deaths a year involved a motor vehicle occupant, pedestrian or cyclist.

The report said falls were associated with more than half of nonfatal injuries involving children younger than 1, while transportation-related injuries and deaths were highest among teens aged 15 to 19.

Among the other key findings in the report:

• On average, 12,175 children aged 0 to 19 years died each year in the United States from an unintentional injury.
• Overall, the highest fatality rates were among occupants of motor vehicles.
• The leading causes of injury death differed by age group. For children younger than 1, two-thirds of injury deaths were due to suffocation. Drowning was the leading cause of injury death for those aged 1 to 4. For children aged 5 to 19, the majority of injury deaths were due to being an occupant in a motor vehicle traffic crash.
• Children aged 1 to 4 had the highest nonfatal injury rates due to poisoning and falls.
• Males were nearly twice as likely as females to die as a result of unintentional injuries.
• Risk for injury death varied by race, with the highest rates among American Indian and Alaska Natives and the lowest rates among Asians or Pacific Islanders. Overall death rates for whites and blacks were similar.
• Injury death rates varied by state, depending upon the cause of death. Northeastern states had the lowest overall injury death rates. Fire and burn death rates were highest in some of the southern states. Death rates from transportation-related injuries were highest in some southern states and some states of the upper plains and lowest in states in the northeast region.
• Five causes accounted for the majority of nonfatal injuries. Falls was the leading cause of nonfatal injury for all age groups younger than 15. For children aged 0 to 9, the next two leading causes were being struck by or against an object and animal bites or insect stings. For children aged 10 to 14, the next leading causes were being struck by or against an object and overexertion. For children aged 15 to 19, the three leading causes of nonfatal injuries were being struck by or against an object, falls and motor vehicle occupant injuries.

The CDC report was released to coincide with the launch of the 2008 World Report on Child Injury Prevention by the World Health Organization and the United Nations Children’s Fund (UNICEF).

“Injuries are among the most under-recognized public health problems facing the United States today,” Grant Baldwin, director of the CDC’s Division of Unintentional Injury Prevention, wrote in the report’s foreword.

“About 20 children die every day from a preventable injury — more than die from all diseases combined. Injuries requiring medical attention or resulting in restricted activity affect approximately 20 million children and adolescents and cost $17 billion annually in medical costs,” Baldwin wrote. “Today, we recognize that these injuries, like the diseases that once killed children, are predictable, preventable and controllable.”

“Injury risks change as our children grow and we want them to be appropriately protected as they develop. We encourage parents to be vigilant and to understand that there are proven ways to help reduce injuries at each life stage,” Dr. Ileana Arias, director of CDC’s Injury Center, said in an agency news release.

Source: National Institutes of Health

While acute pain is a normal sensation triggered in the nervous system to alert you to possible injury and the need to take care of yourself, chronic pain is different. Chronic pain persists. Pain signals keep firing in the nervous system for weeks, months, even years. There may have been an initial mishap — sprained back, serious infection, or there may be an ongoing cause of pain — arthritis, cancer, ear infection, but some people suffer chronic pain in the absence of any past injury or evidence of body damage. Many chronic pain conditions affect older adults. Common chronic pain complaints include headache, low back pain, cancer pain, arthritis pain, neurogenic pain (pain resulting from damage to the peripheral nerves or to the central nervous system itself), psychogenic pain (pain not due to past disease or injury or any visible sign of damage inside or outside the nervous system).

Is there any treatment?

Of this total falls from roofs are one specific concern at construction sites and the most frequent cause for fatal falls in construction in 2007. In fact, BLS reports that from 2003 to 2007, construction worker falls from roofs resulted in 686 fatalities. . 

Source: Occupational Safety and Health Adminsitration

Acute or short-term low back pain generally lasts from a few days to a few weeks. Most acute back pain is the result of trauma to the lower back or a disorder such as arthritis. Pain from trauma may be caused by a sports injury, work around the house or in the garden, or a sudden jolt such as a car accident or other stress on spinal bones and tissues. Symptoms may range from muscle ache to shooting or stabbing pain, limited flexibility and range of motion, or an inability to stand straight. Chronic back pain is pain that persists for more than 3 months. It is often progressive and the cause can be difficult to determine.

Is there any treatment?

What is the prognosis?

What Are the Parts of the Shoulder?

The shoulder joint is made up of bones held in place by muscles, tendons, and ligaments. Tendons are tough cords of tissue that hold the shoulder muscles to bones. They help the muscles move the shoulder. Ligaments hold the three shoulder bones to each other and help make the shoulder joint stable.

Who Gets Shoulder Problems?

Men, women, and children can have shoulder problems. They occur in people of all races and ethnic backgrounds. Shoulder problems occur most often in people more than 60 years old.

What Causes Shoulder Problems?

Many shoulder problems are caused by the breakdown of soft tissues in the shoulder region. Using the shoulder too much can cause the soft tissue to break down faster as people get older. Doing manual labor and playing sports may cause shoulder problems.

Shoulder pain may be felt in one small spot, in a larger area, or down the arm. Pain that travels along nerves to the shoulder can be caused by diseases such as:

• Gallbladder disease
• Liver disease
• Heart disease
• Disease of the spine in the neck.

How Are Shoulder Problems Diagnosed?

Doctors diagnose shoulder problems by using:

• Medical history
• Physical examination
• Tests such as x rays, ultrasound, and magnetic resonance imaging (MRI).

How Are Shoulder Problems Treated?

Shoulder problems are most often first treated with RICE (Rest, Ice, Compression, and Elevation):

• Rest. Don’t use the shoulder for 48 hours.
• Ice. Put an ice pack on the injured area for 20 minutes, four to eight times per day. Use a cold pack, ice bag, or a plastic bag filled with crushed ice wrapped in a towel.
• Compression. Put even pressure (compression) on the painful area to help reduce the swelling. A wrap or bandage will help hold the shoulder in place.
• Elevation. Keep the injured area above the level of the heart. Use a pillow to help keep the shoulder up.

If pain and stiffness persist, see a doctor to diagnose and treat the problem.

What Are the Most Common Shoulder Problems?

The most common shoulder problems are:

• Dislocation
• Separation
• Rotator cuff disease
• Rotator cuff tear
• Frozen shoulder
• Fracture
• Arthritis.

The symptoms and treatment of shoulder problems vary, depending on the type of problem.

Dislocation

Dislocation occurs when the ball at the top of the bone in the upper arm pops out of the socket. It can happen if the shoulder is twisted or pulled very hard.

To treat a dislocation, a doctor performs a procedure to push the ball of the upper arm back into the socket. Further treatment may include:

• Wearing a sling or device to keep the shoulder in place
• Rest
• Ice three or four times a day
• Exercise to improve range of motion, strengthen muscles, and prevent injury.

Once a shoulder is dislocated, it may happen again. This is common in young, active people. If the dislocation injures tissues or nerves around the shoulder, surgery may be needed.

Separation

A shoulder separation occurs when the ligaments between the collarbone and the shoulder blade are torn. The injury is most often caused by a blow to the shoulder or by falling on an outstretched hand.

Treatment for a shoulder separation includes:

• Rest
• A sling to keep the shoulder in place
• Ice to relieve pain and swelling
• Exercise, after a time of rest
• Surgery if tears are severe.

Rotator Cuff Disease: Tendinitis and Bursitis

In tendinitis of the shoulder, tendons become inflamed (red, sore, and swollen) from being pinched by parts around the shoulder.

Bursitis occurs when the bursa – a small fluid-filled sac that helps protect the shoulder joint – is inflamed. Bursitis is sometimes caused by disease, such as rheumatoid arthritis. It is also caused by playing sports that overuse the shoulder or by jobs with frequent overhead reaching.

Tendinitis and bursitis may occur alone or at the same time. Treatment for tendinitis and bursitis includes:

• Rest
• Ice
• Medicines such as aspirin and ibuprofen that reduce pain and swelling
• Ultrasound (gentle sound-wave vibrations) to warm deep tissues and improve blood flow
• Gentle stretching and exercises to build strength
• Injection of corticosteroid drug if the shoulder does not get better in the first few weeks
• Surgery if the shoulder does not get better after 6 to 12 months.

Rotator Cuff Tear

Rotator cuff tendons can become inflamed from frequent use or aging. Sometimes they are injured from a fall on an outstretched hand. Sports or jobs with repeated overhead motion can also damage the rotator cuff. Aging causes tendons to wear down, which can lead to a tear. Some tears are not painful, but others can be very painful.

Treatment for a torn rotator cuff depends on age, health, how severe the injury is, and how long the person has had the torn rotator cuff. Treatment for torn rotator cuff includes:

• Rest
• Heat or cold to the sore area
• Medicines that reduce pain and swelling
• Electrical stimulation of muscles and nerves
• Ultrasound
• Cortisone injection
• Exercise to improve range-of-motion, strength, and function
• Surgery if the tear does not improve with other treatments.

Frozen Shoulder

Movement of the shoulder is very restricted in people with a frozen shoulder. Causes of frozen shoulder are:

• Lack of use due to chronic pain
• Rheumatic disease that is getting worse
• Bands of tissue that grow in the joint and restrict motion
• Lack of the fluid that helps the shoulder joint move.

Treatment for frozen shoulder includes:

• A doctor putting the bones into a position that will promote healing
• Medicines to reduce pain and swelling
• Heat
• Gentle stretching exercise
• Electrical stimulation of muscles and nerves
• Cortisone injection
• Surgery if the shoulder does not improve with other treatments.

Fracture

A fracture is a crack through part or all of a bone. In the shoulder, a fracture usually involves the collarbone or upper arm bone. Fractures are often caused by a fall or blow to the shoulder.

Treatment for a fracture may include:

• A doctor putting the bones into a position that will promote healing
• A sling or other device to keep the bones in place
• After the bone heals, exercise to strengthen the shoulder and restore movement
• Surgery.

Arthritis of the Shoulder

Arthritis can be one of two types:

• Osteoarthritis – a disease caused by wear and tear of the cartilage
• Rheumatoid arthritis – an autoimmune disease causing one or more joints to become inflamed.

Osteoarthritis of the shoulder is often treated with nonsteroidal anti-inflammatory drugs (NSAIDs) such as aspirin and ibuprofen. People with rheumatoid arthritis may need physical therapy and medicine such as corticosteroids.

If these treatments for arthritis of the shoulder don’t relieve pain or improve function, surgery may be needed.

A coma, sometimes also called persistent vegetative state, is a profound or deep state of unconsciousness. Persistent vegetative state is not brain-death. An individual in a state of coma is alive but unable to move or respond to his or her environment. Coma may occur as a complication of an underlying illness, or as a result of injuries, such as head trauma. . Individuals in such a state have lost their thinking abilities and awareness of their surroundings, but retain non-cognitive function and normal sleep patterns. Even though those in a persistent vegetative state lose their higher brain functions, other key functions such as breathing and circulation remain relatively intact. Spontaneous movements may occur, and the eyes may open in response to external stimuli. Individuals may even occasionally grimace, cry, or laugh. Although individuals in a persistent vegetative state may appear somewhat normal, they do not speak and they are unable to respond to commands.

Is there any treatment?

Cerebral hypoxia refers to a condition in which there is a decrease of oxygen supply to the brain even though there is adequate blood flow. Drowning, strangling, choking, suffocation, cardiac arrest, head trauma, carbon monoxide poisoning, and complications of general anesthesia can create conditions that can lead to cerebral hypoxia. Symptoms of mild cerebral hypoxia include inattentiveness, poor judgment, memory loss, and a decrease in motor coordination. Brain cells are extremely sensitive to oxygen deprivation and can begin to die within five minutes after oxygen supply has been cut off. When hypoxia lasts for longer periods of time, it can cause coma, seizures, and even brain death.  In brain death, there is no measurable activity in the brain, although cardiovascular function is preserved. Life support is required for respiration.

Is there any treatment?

What is the prognosis?

Irene is retired, she loves to work in her garden. Because she has always spent hours outside, she thinks the heat and humidity of Midwestern summers don’t bother her. Then last year an unusual heat wave hit her area. Every day the temperature was over 100° F, and the humidity was at least 90%. Five days into the heat wave, her daughter Kim came over because Irene sounded confused on the phone. Kim found her mom passed out on the kitchen floor. The ambulance came quickly when called, but Irene almost died. She had heat stroke, the most serious form of hyperthermia.

Almost every summer there is a deadly heat wave in some part of the country. Too much heat is not safe for anyone. It is even riskier if you are older or if you have health problems. It is important to get relief from the heat quickly. If not, you might begin to feel confused or faint. Your heart could become stressed, and maybe stop beating.

Your body is always working to keep a balance between how much heat it makes and how much it loses. Your brain is the thermostat. It sends and receives signals to and from parts of your body that affect temperature, such as the spinal cord, muscles, blood vessels, skin, and glands that make substances known as hormones. Too much heat causes sweating. When the sweat dries from your skin, the surface of your body cools and your temperature goes down.

Being hot for too long can cause many illnesses, all grouped under the name hyperthermia (hy-per-ther-mee-uh):

• Heat cramps are the painful tightening of muscles in your stomach area, arms, or legs. Cramps can result from hard work or exercise. While your body temperature and pulse usually stay normal during heat cramps, your skin may feel moist and cool. Take these cramps as a sign that you are too hot — find a way to cool your body down. Be sure to drink plenty of fluids, but not those containing alcohol or caffeine.
• Heat edema is a swelling in your ankles and feet when you get hot. Putting your legs up should help. If that doesn’t work fairly quickly, check with your doctor.
• Heat syncope is a sudden dizziness that may come on when you are active in the heat. If you take a form of heart medication known as a beta blocker or are not used to hot weather, you are even more likely to feel faint when in the heat. Putting your legs up and resting in a cool place should make the dizzy feeling go away.
• Heat exhaustion is a warning that your body can no longer keep itself cool. You might feel thirsty, dizzy, weak, uncoordinated, nauseated, and sweat a lot. Your body temperature stays normal, skin feels cold and clammy. Your pulse can be normal or raised. Resting in a cool place, drinking plenty of fluids, and getting medical care should help you feel better soon. If not, this condition can progress to heat stroke.
• Heat stroke is an emergency — it can be life threatening! You need to get medical help right away. Getting to a cool place is very important, but so is treatment by a doctor. Many people die of heat stroke each year. Older people living in homes or apartments without air conditioning or good airflow are at most risk. So are people who don’t drink enough water or those with chronic diseases or alcoholism.

Who Is at Risk?

Hundresds of people die from hyperthermia each year during very hot weather. Most are over 50 years old. The temperature outside or inside does not have to hit 100° F for you to be at risk for a heat-related illness. Health problems that put you at risk include:

• Heart or blood vessel problems, poorly working sweat glands, or changes in your skin caused by normal aging.
• Heart, lung, or kidney disease, as well as any illness that makes you feel weak all over or causes a fever.
• High blood pressure or other conditions that make it necessary for you to change some of the foods you eat. For example, if you are supposed to avoid salt in your food, your risk of heat-related illness may be higher. Check with your doctor.
• Conditions treated by drugs such as diuretics, sedatives, tranquilizers, and some heart and blood pressure medicines. These may make it harder for your body to cool itself by perspiring.
• Taking several drugs for a variety of health problems. Keep taking your prescriptions, but ask your doctor what to do if the drugs you are taking make you more likely to become overheated.
• Being quite a bit overweight or underweight.
• Drinking alcoholic beverages.

How Can I Lower My Risk?

Things you can do to lower your risk of heat-related illness:

• Drink plenty of liquids — water or fruit and vegetable juices. Every day you should drink at least eight glasses to keep your body working properly. Heat tends to make you lose fluids so it is very important to drink at least that much, if not more, when it is hot. Avoid drinks containing caffeine or alcohol. They make you lose more fluids. If your doctor has told you to limit your liquids, ask him or her what you should do when it is very hot.
• If you live in a home or apartment without fans or air conditioning, be sure to follow these steps to lower your chance of heat problems:
  • open windows at night;
  • create cross-ventilation by opening windows on two sides of the building;
  • cover windows when they are in direct sunlight;
  • keep curtains, shades or blinds drawn during the hottest part of the day;
  • try to spend at least 2 hours a day (if possible during the hottest part of the day) some place air-conditioned — for example, the shopping mall, the movies, the library, a senior center, or a friend’s house if you don’t have air conditioning.
• Check with your local area agency on aging to see if there is a program that provides
  window air conditioners to seniors who qualify.
• If you think you can’t afford to run your air conditioner in the summer, contact your
  local area agency on aging. Or, ask at your local senior center. They may know if there are any programs in your community to aid people who need help paying their cooling bills. The Low Income Home Energy Assistance Program (LIHEAP) is one possible source.
• Ask a friend or relative to drive you to a cool place on very hot days if you don’t have
  a car or no longer drive. Many towns or counties, area agencies, religious groups, and senior citizen centers provide such services. If necessary, take a taxi. Don’t stand outside waiting for a bus.
• Pay attention to the weather reports. You are more at risk as the temperature or humidity rise or when there is an air pollution alert in effect.
• Dress for the weather. Some people find natural fabrics such as cotton to be cooler than synthetic fibers. Light-colored clothes reflect the sun and heat better than dark colors. If you are unsure about what to wear, ask a friend or family member to help you select clothing that will help you stay cool.
• Don’t try to exercise or do a lot of activities when it is hot.
• Avoid crowded places when it’s hot outside. Plan trips during non-rush hour times.

What Should I Remember?

Headache, confusion, dizziness, or nausea when you’re in a hot place or during hot weathercould be a sign of a heat-related illness. Go to the doctor or an emergency room to find out if you need tgreatment. To keep heat-related illnesses from becoming a dangerous heat stroke, remember to:

• Get out of the sun and into a cool place — air-conditioning is best.
• Offer fluids, but avoid alcohol and caffeine. Water and fruit and vegetable juices are best.
• Shower or bathe, or at least sponge off with cool water.
• Lie down and rest, if possible in a cool place.
• Visit your doctor or an emergency room if you don’t cool down quickly.

The term pinched nerve describes one type of damage or injury to a nerve or set of nerves. The injury may result from compression, constriction, or stretching. Symptoms include numbness, “pins and needles” or burning sensations, and pain radiating outward from the injured area. One of the most common examples of a single compressed nerve is the feeling of having a foot or hand “fall asleep.” Pinched nerves can sometimes lead to other conditions such as peripheral neuropathy, carpal tunnel syndrome, and tennis elbow. The extent of such injuries may vary from minor, temporary damage to a more permanent condition. Early diagnosis is important to prevent further damage or complications. Pinched nerve is a common cause of on-the-job injury.

Is there any treatment?

What is the prognosis?

What is physical trauma?

Physical trauma is a serious injury to the body.  

• Blunt force trauma occurs when the body is struck with an object or force, causing concussions, lacerations, or fractures.
• Penetrating trauma occurs when an object pierces the skin or body, usually creating an open wound.
• Trauma also results from “controlled injury,” such as that caused by surgery.

What is psychological trauma?

Psychological trauma is an emotional or psychological injury, usually resulting from an extremely stressful or life-threatening situation. For more information on psychological trauma, visit the National Institute on Mental Health’s Coping with Traumatic Events.

How many people die from physical trauma each year in the United States?

According to the Centers for Disease Control and Prevention (CDC), unintentional injury kills more people between the ages of 1 and 44 than any other disease or illness. Trauma (including accidental and deliberate injuries) causes:

• 35 percent of all deaths from ages 1-4 
• 38 percent of all deaths from ages 5-9
• 74 percent of all deaths from ages 10-24*
• 56 percent of all deaths from ages 25-34*
• 31 percent of all deaths from ages 35-44*

* includes suicides and homicides

What is shock?

Shock often accompanies trauma. Also known as “circulatory collapse,” shock can occur when the blood pressure in a person’s arteries is too low to maintain an adequate supply of blood to organs and tissues.

What are the symptoms of shock?

The symptoms of shock include cold and sweaty skin, weak but rapid pulse, irregular breathing, dry mouth, dilated pupils, and reduced urine flow.

What causes shock?

Shock can be caused by internal or external bleeding (hypovolemic shock), dehydration, burns, or severe vomiting and/or diarrhea. All of these involve the loss of large amounts of body fluids.

What are the different types of shock?

• Septic shock is caused by microorganisms in the bloodstream.
• Anaphylactic shock is caused by a severe allergic reaction.
• Cardiogenic shock is caused by the inability of the heart to pump blood effectively.
• Neurogenic shock is caused by extreme emotional upset due to personal tragedy or disaster.

The spine, a row of 26 bones in your back, allows you to stand up straight and bend over. The spine also protects your spinal cord from being hurt. In people with spinal stenosis, the spine is narrowed in one or more of three parts:

  
• The space at the center of the spine
• The canals where nerves branch out from the spine
• The space between vertebrae (the bones of the spine).

This narrowing puts pressure on the spinal cord and nerves and can cause pain.

Who Gets Spinal Stenosis?

Spinal stenosis is most common in men and women over 50 years old. Younger people who were born with a narrow spinal canal or who hurt their spines may also get spinal stenosis.

What Causes Spinal Stenosis?

Aging

Changes that occur in the spine as people get older are the most common cause of spinal stenosis. As people get older:

• The bands of tissue that support the spine may get thick and hard.
• Bones and joints may get bigger.
• Surfaces of the bones may bulge out (these are called bone spurs).

Arthritis

In some cases arthritis, a degenerative (gets worse over time) condition can cause spinal stenosis. Two forms of arthritis may affect the spine: osteoarthritis and rheumatoid arthritis.

Osteoarthritis:  

• The most common form of arthritis
• Most often occurs in middle-aged and older people
• Doesn’t go away
• May involve many joints in the body
• Wears away the tough tissue (cartilage) that keeps the joints in place
• Causes bone spurs and problems with joints.

Rheumatoid Arthritis:

• Affects most people at a younger age than osteoarthritis
• Causes the soft tissues of the joints to swell and can affect the internal organs and systems
• Is not a common cause of spinal stenosis
• Can cause severe damage, especially to joints.

Inherited Conditions

Some people are born with conditions that cause spinal stenosis. For instance, some people are born with a small spinal canal. Others are born with a curved spine (scoliosis).

Other Causes

Other causes of spinal stenosis are:

• Tumors of the spine
• Injuries
• Paget’s disease (a disease that affects the bones)
• Too much fluoride in the body
• Calcium deposits on the ligaments that run along the spine.

What Are the Symptoms of Spinal Stenosis?

There may be no symptoms of spinal stenosis, or symptoms may appear slowly and get worse over time. Signs of spinal stenosis include:

• Pain in the neck or back
• Numbness, weakness, cramping, or pain in the arms or legs
• Pain going down the leg
• Foot problems.

One type of spinal stenosis, cauda equine syndrome, is very serious. This type occurs when there is pressure on nerves in the lower back. Symptoms may include:

• Loss of control of the bowel or bladder
• Problems having sex
• Pain, weakness, or loss of feeling in one or both legs.

If you have any of these symptoms, you should call your doctor right away.

How Is Spinal Stenosis Diagnosed?

To diagnose spinal stenosis, your doctor will ask about your medical history and conduct a physical exam. Your doctor may also order one or more tests, such as:

• X rays
• Magnetic resonance imaging (MRI) – a test that uses radio waves to look at your spine
• Computerized axial tomography (CAT) – a series of x rays that give your doctor a detailed image of your spine
• Myelogram – a test in which the doctor injects liquid dye into your spinal column
• Bone scan – a test in which you are given a shot of radioactive substance that shows where bone is breaking down or being formed.

Who Treats Spinal Stenosis?

Because spinal stenosis has many causes and symptoms, you may require treatment from doctors who specialize in certain aspects of the condition. Based on your symptoms, your doctor may refer you to:

• Rheumatologists (doctors who treat arthritis and related disorders)
• Neurologists and neurosurgeons (doctors who treat diseases of the nervous system)
• Orthopedic surgeons (doctors who treat problems with the bones, joints, and ligaments)
• Physical therapists.

What Are Some Nonsurgical Treatments for Spinal Stenosis?

There are many nonsurgical treatments for spinal stenosis. Your doctor may prescribe:

• Medicines to reduce swelling
• Medicines to relieve pain
• Limits on your activity
• Exercises and/or physical therapy
• A brace for your lower back.

When Should Surgery Be Considered?

Your doctor will likely suggest nonsurgical treatment first unless you have:

• Symptoms that get in the way of walking
• Problems with bowel or bladder function
• Problems with your nervous system.

Your doctor will take many factors into account in deciding if surgery is right for you. These include:

• The success of nonsurgical treatments
• The extent of the pain
• Your preferences.

What Are Some Alternative Treatments for Spinal Stenosis?

Alternative treatments are those that are not part of standard treatment. For spinal stenosis, such treatments include chiropractic treatment and acupuncture. More research is needed on the value of these treatments. Your doctor may suggest alternative treatments in addition to standard treatments.

If you have lower back pain, you are not alone. Nearly everyone at some point has back pain that interferes with work, routine daily activities, or recreation. Americans spend at least $50 billion each year on low back pain, the most common cause of job-related disability and a leading contributor to missed work. Back pain is the second most common neurological ailment in the United States — only headache is more common. Fortunately, most occurrences of low back pain go away within a few days. Others take much longer to resolve or lead to more serious conditions.

Acute or short-term low back pain generally lasts from a few days to a few weeks. Most acute back pain is mechanical in nature — the result of trauma to the lower back or a disorder such as arthritis. Pain from trauma may be caused by a sports injury, work around the house or in the garden, or a sudden jolt such as a car accident or other stress on spinal bones and tissues. Symptoms may range from muscle ache to shooting or stabbing pain, limited flexibility and/or range of motion, or an inability to stand straight. Occasionally, pain felt in one part of the body may “radiate” from a disorder or injury elsewhere in the body. Some acute pain syndromes can become more serious if left untreated.

Chronic back pain is measured by duration — pain that persists for more than 3 months is considered chronic. It is often progressive and the cause can be difficult to determine.

What structures make up the back?

What causes lower back pain?

Who is most likely to develop low back pain?

What conditions are associated with low back pain?

How is low back pain diagnosed?

How is back pain treated?

Can back pain be prevented?

Quick tips to a healthier back

A sprain is a stretch and/or tear of a ligament (a band of fibrous tissue that connects two or more bones at a joint). One or more ligaments can be injured at the same time. The severity of the injury will depend on the extent of injury (whether a tear is partial or complete) and the number of ligaments involved.

A strain is an injury to either a muscle or a tendon (fibrous cords of tissue that connect muscle to bone). Depending on the severity of the injury, a strain may be a simple overstretch of the muscle or tendon, or it can result from a partial or complete tear.

What Causes a Sprain?

A sprain can result from a fall, a sudden twist, or a blow to the body that forces a joint out of its normal position and stretches or tears the ligament supporting that joint. Typically, sprains occur when people fall and land on an outstretched arm, slide into a baseball base, land on the side of their foot, or twist a knee with the foot planted firmly on the ground.

Where Do Sprains Usually Occur?

Although sprains can occur in both the upper and lower parts of the body, the most common site is the ankle. More than 25,000 individuals sprain an ankle each day in the United States.

The ankle joint is supported by several lateral (outside) ligaments and medial (inside) ligaments (see fig. 1). Most ankle sprains happen when the foot turns inward as a person runs, turns, falls, or lands on the ankle after a jump. This type of sprain is called an inversion injury. The knee is another common site for a sprain. A blow to the knee or a fall is often the cause; sudden twisting can also result in a sprain (see fig. 2).

Sprains frequently occur at the wrist, typically when people fall and land on an outstretched hand. A sprain to the thumb is common in skiing and other sports. This injury often occurs when a ligament near the base of the thumb (the ulnar collateral ligament of the metacarpo-phalangeal joint) is torn (see fig. 3).

What Are the Signs and Symptoms of a Sprain?

The usual signs and symptoms include pain, swelling, bruising, instability, and loss of the ability to move and use the joint (called functional ability). However, these signs and symptoms can vary in intensity, depending on the severity of the sprain. Sometimes people feel a pop or tear when the injury happens.

Doctors closely observe an injured site and ask questions to obtain information to diagnose the severity of a sprain. In general, a grade I or mild sprain is caused by overstretching or slight tearing of the ligaments with no joint instability. A person with a mild sprain usually experiences minimal pain, swelling, and little or no loss of functional ability. Bruising is absent or slight, and the person is usually able to put weight on the affected joint.

A grade II or moderate sprain is caused by further, but still incomplete, tearing of the ligament and is characterized by bruising, moderate pain, and swelling. A person with a moderate sprain usually has more difficulty putting weight on the affected joint and experiences some loss of function. An x ray may be needed to help the health care provider determine if a fracture is causing the pain and swelling. Magnetic resonance imaging is occasionally used to help differentiate between a significant partial injury and a complete tear in a ligament, or can be recommended to rule out other injuries.

People who sustain a grade III or severe sprain completely tear or rupture a ligament. Pain, swelling, and bruising are usually severe, and the patient is unable to put weight on the joint. An x ray is usually taken to rule out a broken bone. When diagnosing any sprain, the provider will ask the patient to explain how the injury happened. He or she will examine the affected area and check its stability and its ability to move and bear weight.

What Causes a Strain?

A strain is caused by twisting or pulling a muscle or tendon. Strains can be acute or chronic. An acute strain is associated with a recent trauma or injury; it also can occur after improperly lifting heavy objects or overstressing the muscles. Chronic strains are usually the result of overuse: prolonged, repetitive movement of the muscles and tendons.

Where Do Strains Usually Occur?

Two common sites for a strain are the back and the hamstring muscle (located in the back of the thigh). Contact sports such as soccer, football, hockey, boxing, and wrestling put people at risk for strains. Gymnastics, tennis, rowing, golf, and other sports that require extensive gripping can increase the risk of hand and forearm strains. Elbow strains sometimes occur in people who participate in racquet sports, throwing, and contact sports.

What Are the Signs and Symptoms of a Strain?

Typically, people with a strain experience pain, limited motion, muscle spasms, and possibly muscle weakness. They can also have localized swelling, cramping, or inflammation and, with a minor or moderate strain, usually some loss of muscle function. Patients typically have pain in the injured area and general weakness of the muscle when they attempt to move it. Severe strains that partially or completely tear the muscle or tendon are often very painful and disabling.

How Are Sprains and Strains Treated?

Reduce Swelling and Pain

Treatments for sprains and strains are similar and can be thought of as having two stages. The goal during the first stage is to reduce swelling and pain. At this stage, health care providers usually advise patients to follow a formula of rest, ice, compression, and elevation (RICE) for the first 24 to 48 hours after the injury (see the box below). The provider may also recommend an over-the-counter or prescription nonsteroidal anti-inflammatory drug, such as aspirin or ibuprofen, to help decrease pain and inflammation.

For people with a moderate or severe sprain, particularly of the ankle, a hard cast may be applied. This often occurs after the initial swelling has subsided. Severe sprains and strains may require surgery to repair the torn ligaments, muscle, or tendons. Surgery is usually performed by an orthopaedic surgeon.

It is important that moderate and severe sprains and strains be evaluated by a health care provider to allow prompt, appropriate treatment to begin. This box lists some signs that should alert people to consult their provider. However, a person who has any concerns about the seriousness of a sprain or strain should always contact a provider for advice.

 

RICE Therapy

• Rest
  Reduce regular exercise or activities of daily living as needed. Your health care provider may advise you to put no weight on an injured area for 48 hours. If you cannot put weight on an ankle or knee, crutches may help. If you use a cane or one crutch for an ankle injury, use it on the uninjured side to help you lean away and relieve weight on the injured ankle.
• Ice
  Apply an ice pack to the injured area for 20 minutes at a time, 4 to 8 times a day. A cold pack, ice bag, or plastic bag filled with crushed ice and wrapped in a towel can be used. To avoid cold injury and frostbite, do not apply the ice for more than 20 minutes.
• Compression
  Compression of an injured ankle, knee, or wrist may help reduce swelling. Examples of compression bandages are elastic wraps, special boots, air casts, and splints. Ask your provider for advice on which one to use, and how tight to safely apply the bandage.
• Elevation
  If possible, keep the injured ankle, knee, elbow, or wrist elevated on a pillow, above the level of the heart, to help decrease swelling.

 

Begin Rehabilitation

The second stage of treating a sprain or strain is rehabilitation, whose overall goal is to improve the condition of the injured area and restore its function. The health care provider will prescribe an exercise program designed to prevent stiffness, improve range of motion, and restore the joint’s normal flexibility and strength. Some patients may need physical therapy during this stage. When the acute pain and swelling have diminished, the provider will instruct the patient to do a series of exercises several times a day. These are very important because they help reduce swelling, prevent stiffness, and restore normal, pain-free range of motion. The provider can recommend many different types of exercises, depending on the injury. A patient with an injured knee or foot will work on weight-bearing and balancing exercises. The duration of the program depends on the extent of the injury, but the regimen commonly lasts for several weeks.

Another goal of rehabilitation is to increase strength and regain flexibility. Depending on the patient’s rate of recovery, this process begins about the second week after the injury. The provider will instruct the patient to do a series of exercises designed to meet these goals. During this phase of rehabilitation, patients progress to more demanding exercises as pain decreases and function improves.

The final goal is the return to full daily activities, including sports when appropriate. Patients must work closely with their health care provider or physical therapist to determine their readiness to return to full activity. Sometimes people are tempted to resume full activity or play sports despite pain or muscle soreness. Returning to full activity before regaining normal range of motion, flexibility, and strength increases the chance of reinjury and may lead to a chronic problem.

The amount of rehabilitation and the time needed for full recovery after a sprain or strain depend on the severity of the injury and individual rates of healing. For example, a mild ankle sprain may require up to 3 to 6 weeks of rehabilitation; a moderate sprain could require 2 to 3 months. With a severe sprain, it can take up to 8 to 12 months to return to full activities. Extra care should be taken to avoid reinjury.

Can Sprains and Strains Be Prevented?

There are many things people can do to help lower their risk of sprains and strains:

• Avoid exercising or playing sports when tired or in pain.
• Maintain a healthy, well-balanced diet to keep muscles strong.
• Maintain a healthy weight.
• Practice safety measures to help prevent falls (for example, keep stairways, walkways, yards, and driveways free of clutter; anchor scatter rugs; and salt or sand icy patches in the winter).
• Wear shoes that fit properly.
• Replace athletic shoes as soon as the tread wears out or the heel wears down on one side.
• Do stretching exercises daily.
• Be in proper physical condition to play a sport.
• Warm up and stretch before participating in any sports or exercise.
• Wear protective equipment when playing.
• Run on even surfaces.

Anyone can have back pain, but some things that increase your risk are:

• Getting older. Back pain is more common the older you get. You may first have back pain when you are 30 to 40 years old.
• Poor physical fitness. Back pain is more common in people who are not fit.
• Being overweight. A diet high in calories and fat can make you gain weight. Too much weight can stress the back and cause pain.
• Inherited diseases or conditions. Some kinds of back pain, such as disc disease, can be inherited.
• Other diseases. Some types of arthritis and cancer can cause back pain.
• Your job. If you have to lift, push, or pull while twisting your spine, you may get back pain. If you work at a desk all day and do not sit up straight, you may also get back pain.
• Smoking. Your body may not be able to get enough nutrients to the discs in your back if you smoke. Smoker’s cough may also cause back pain. People who smoke are slow to heal, so back pain may last longer.

Another factor is race. For example, black women are two to three times more likely than white women to have part of the lower spine slip out of place.

What Are the Causes of Back Pain?

There are many causes of back pain. Mechanical problems with the back itself can cause pain. Examples are:

• Disc breakdown
• Spasms
• Tense muscles
• Ruptured discs

Injuries from sprains, fractures, accidents, and falls can result in back pain.

Back pain can also occur with some conditions and diseases, such as:

• Scoliosis
• Spondylolisthesis
• Arthritis
• Spinal stenosis
• Pregnancy
• Kidney stones
• Infections
• Endometriosis
• Fibromyalgia

Other possible causes of back pain are infections, tumors, or stress.

Can Back Pain Be Prevented?

The best things you can do to prevent back pain are:

• Exercise often and keep your back muscles strong.
• Maintain a healthy weight or lose weight if you weigh too much. To have strong bones, you need to get enough calcium and vitamin D every day.
• Try to stand up straight and avoid heavy lifting when you can. If you do lift something heavy, bend your legs and keep your back straight.

When Should I See a Doctor for Pain?

You should see a doctor if you have:

• Numbness or tingling
• Severe pain that does not improve with rest
• Pain after a fall or an injury
• Pain plus any of these problems:
  • Trouble urinating
  • Weakness
  • Numbness in your legs
  • Fever
  • Weight loss when not on a diet.

How Is Back Pain Diagnosed?

To diagnose back pain, your doctor will take your medical history and do a physical exam. Your doctor may order other tests, such as:

• X rays
• Magnetic resonance imaging (MRI)
• Computed tomography (CT) scan
• Blood tests.

Medical tests may not show the cause of your back pain. Many times, the cause of back pain is never known. Back pain can get better even if you do not know the cause.

What Is the Difference Between Acute and Chronic Pain?

Acute pain starts quickly and lasts less than 6 weeks. It is the most common type of back pain. Acute pain may be caused by things like falling, being tackled in football, or lifting something heavy. Chronic pain lasts for more than 3 months and is much less common than acute pain.

How Is Back Pain Treated?

Treatment for back pain depends on what kind of pain you have. Acute back pain usually gets better without any treatment, but you may want to take acetaminophen, aspirin, or ibuprofen to help ease the pain. Exercise and surgery are not usually used to treat acute back pain.

Following are some types of treatments for chronic back pain.

Hot or Cold Packs (or Both)

Hot or cold packs can soothe sore, stiff backs. Heat reduces muscle spasms and pain. Cold helps reduce swelling and numbs deep pain. Using hot or cold packs may relieve pain, but this treatment does not fix the cause of chronic back pain.

Exercise

Proper exercise can help ease chronic pain but should not be used for acute back pain. Your doctor or physical therapist can tell you the best types of exercise to do.

Medications

The following are the main types of medications used for back pain:

• Analgesic medications are over-the-counter drugs such as acetaminophen and aspirin or prescription pain medications.
• Topical analgesics are creams, ointments, and salves rubbed onto the skin over the site of pain.
• Nonsteroidal anti-inflammatory drugs (NSAIDs) are drugs that reduce both pain and swelling. NSAIDs include over-the-counter drugs such as ibuprofen, ketoprofen, and naproxen sodium. Your doctor may prescribe stronger NSAIDs.
• Muscle relaxants and some antidepressants have also been prescribed for chronic back pain, but it is not yet known if they work for back pain.

Behavior Changes

You can learn to lift, push, and pull with less stress on your back. Changing how you exercise, relax, and sleep can help lessen back pain. Eating a healthy diet and not smoking also help.

Injections

Your doctor may suggest steroid or numbing shots to lessen your pain.

Complementary and Alternative Medical Treatments

When back pain becomes chronic or when other treatments do not relieve it, some people try complementary and alternative treatments. The most common of these treatments are:

• Manipulation. Professionals use their hands to adjust or massage the spine or nearby tissues.
• Transcutaneous electrical nerve stimulation (TENS). A small box over the painful area sends mild electrical pulses to nerves. Studies have shown that TENS treatments are not always effective for reducing pain.
• Acupuncture. This Chinese practice uses thin needles to relieve pain and restore health. Acupunture may be effective when used as a part of a comprehensive treatment plan for low back pain.
• Acupressure. A therapist applies pressure to certain places in the body to relieve pain. Acupressure has not been well studied for back pain.

Surgery

Most people with chronic back pain do not need surgery. It is usually used for chronic back pain if other treatments do not work. You may need surgery if you have:

• Herniated disc. When one or more of the discs that cushion the bones of the spine are damaged, the jelly-like center of the disc leaks, causing pain.
• Spinal stenosis. This condition causes the spinal canal to become narrow.
• Spondylolisthesis. This occurs when one or more bones of the spine slip out of place.
• Vertebral fractures. A fracture can be caused by a blow to the spine or by crumbling of the bone due to osteoporosis.
• Degenerative disc disease. As people age, some have discs that break down and cause severe pain.

Rarely, when back pain is caused by a tumor, an infection, or a nerve root problem called cauda equina syndrome, surgery is needed right away to ease the pain and prevent more problems.

Source: National Institutes of Health

Traumatic brain injury (TBI), also called acquired brain injury or simply head injury, occurs when a sudden trauma causes damage to the brain. TBI can result when the head suddenly and violently hits an object, or when an object pierces the skull and enters brain tissue. Symptoms of a TBI can be mild, moderate, or severe, depending on the extent of the damage to the brain. A person with a mild TBI may remain conscious or may experience a loss of consciousness for a few seconds or minutes. Other symptoms of mild TBI include headache, confusion, lightheadedness, dizziness, blurred vision or tired eyes, ringing in the ears, bad taste in the mouth, fatigue or lethargy, a change in sleep patterns, behavioral or mood changes, and trouble with memory, concentration, attention, or thinking. A person with a moderate or severe TBI may show these same symptoms, but may also have a headache that gets worse or does not go away, repeated vomiting or nausea, convulsions or seizures, an inability to awaken from sleep, dilation of one or both pupils of the eyes, slurred speech, weakness or numbness in the extremities, loss of coordination, and increased confusion, restlessness, or agitation.

Is there any treatment?

What is the prognosis?

Chiropractic is a health care approach that focuses on the relationship between the body’s structure—mainly the spine—and its functioning. Although practitioners may use a variety of treatment approaches, they primarily perform adjustments to the spine or other parts of the body with the goal of correcting alignment problems and supporting the body’s natural ability to heal itself.

Key Points

• People seek chiropractic care primarily for pain conditions such as back pain, neck pain, and headache.
• Side effects and risks depend on the type of chiropractic treatment used.
• Chiropractic practitioners in the United States are required to earn a Doctor of Chiropractic degree from properly accredited colleges.
• Ongoing research is looking at effects of chiropractic treatment approaches, how they might work, and diseases and conditions for which they may be most helpful.
• Tell your health care providers about any complementary and alternative practices you use. Give them a full picture of what you do to manage your health. This will help ensure coordinated and safe care.

Overview and History

The term “chiropractic” combines the Greek words cheir (hand) and praxis (action) to describe a treatment done by hand. Hands-on therapy—especially adjustment of the spine—is central to chiropractic care. Chiropractic, which in the United States is considered part of complementary and alternative medicine (CAM), is based on these key concepts:

• The body has a powerful self-healing ability.
• The body’s structure (primarily that of the spine) and its function are closely related, and this relationship affects health.
• Therapy aims to normalize this relationship between structure and function and assist the body as it heals.

While some procedures associated with chiropractic care can be traced back to ancient times, the modern profession of chiropractic was founded by Daniel David Palmer in 1895 in Davenport, Iowa. Palmer, a self-taught healer, believed that the body has a natural healing ability. Misalignments of the spine can interfere with the flow of energy needed to support health, Palmer theorized, and the key to health is to normalize the function of the nervous system, especially the spinal cord.

Patterns of Use

A 2002 national survey found that about 20 percent of American adults had received chiropractic care at some point during their lives. Chiropractic was one of the 10 most commonly used CAM therapies. Those surveyed reported using chiropractic treatment for the following reasons:

• Combining chiropractic services with conventional medical treatments would help–53 percent
• Conventional medicine would not help–40 percent
• Chiropractic would be interesting to try–32 percent
• Conventional medical professional suggested it–20 percent
• Conventional medical treatments were too expensive–10 percent.

Many people who seek chiropractic care have chronic, pain-related health conditions. Low-back pain, neck pain, and headache are common conditions for which people seek chiropractic treatment.

What To Expect From Chiropractic Visits

During the initial visit, chiropractors typically take a health history and perform a physical examination, with a special emphasis on the spine. Other examinations or tests such as x-rays may also be performed. If chiropractic treatment is considered appropriate, a treatment plan will be developed.

During followup visits, practitioners may perform one or more of the many different types of adjustments used in chiropractic care. Given mainly to the spine, a chiropractic adjustment (sometimes referred to as a manipulation) involves using the hands or a device to apply a controlled, sudden force to a joint, moving it beyond its passive range of motion. The goal is to increase the range and quality of motion in the area being treated and to aid in restoring health. Other hands-on therapies such as mobilization (movement of a joint within its usual range of motion) also may be used.

Chiropractors may combine the use of spinal adjustments with several other treatments and approaches such as:

• Heat and ice
• Electrical stimulation
• Rest
• Rehabilitative exercise
• Counseling about diet, weight loss, and other lifestyle factors
• Dietary supplements.

Side Effects and Risks

Side effects and risks depend on the specific type of chiropractic treatment used. For example, side effects from chiropractic adjustments can include temporary headaches, tiredness, or discomfort in parts of the body that were treated. The likelihood of serious complications, such as stroke, appears to be extremely low and related to the type of adjustment performed and the part of the body treated.

If dietary supplements are a part of the chiropractic treatment plan, they may interact with medicines and cause side effects. It is important that people inform their chiropractors of all medicines (whether prescription or over-the-counter) and supplements they are taking.

Qualifications To Practice

To practice chiropractic care in the United States, a practitioner must earn a Doctor of Chiropractic (D.C.) degree from a college accredited by the Council on Chiropractic Education (CCE). CCE is the agency certified by the U.S. Department of Education to accredit chiropractic colleges in the United States. Admission to a chiropractic college requires a minimum of 90 semester hour credits (approximately 3 years) of undergraduate study, mostly in the sciences.

Chiropractic training is a 4-year academic program that includes both classroom work and direct experience caring for patients. Coursework typically includes instruction in the biomedical sciences, as well as in public health and research methods. Some chiropractors pursue a 2- to 3-year residency for training in specialized fields.

Regulation

Chiropractic is regulated individually by each state and the District of Columbia. Board examinations are required for licensing and include a mock patient encounter. Most states require chiropractors to earn annual continuing education credits to maintain their licenses. Chiropractors’ scope of practice varies by state in areas such as laboratory tests or diagnostic procedures, the dispensing or selling of dietary supplements, and the use of other CAM therapies such as acupuncture orhomeopathy.

Insurance Coverage

Compared with other CAM therapies, insurance coverage for chiropractic services is extensive. Many HMOs (health maintenance organizations) and private health care plans cover chiropractic treatment, as do all state workers’ compensation systems. Chiropractors can bill Medicare, and many states cover chiropractic treatment under Medicaid. If you have health insurance, check whether chiropractic services are covered before you seek treatment.

Other Points To Consider

• Research to expand the scientific understanding of chiropractic treatment is ongoing.
• If you decide to seek chiropractic care, talk to your chiropractor about:
  • His education, training, and licensing
  • Whether he has experience treating the health conditions for which you are seeking care
  • Any special medical concerns you have and any medicines or dietary supplements you are taking.
• Tell all of your health care providers about any complementary and alternative practices you use. Give them a full picture of what you do to manage your health. This will help ensure coordinated and safe care.

Complex regional pain syndrome (CRPS) is a chronic pain condition. The key symptom of CRPS is continuous, intense pain out of proportion to the severity of the injury, which gets worse rather than better over time. CRPS most often affects one of the arms, legs, hands, or feet. Often the pain spreads to include the entire arm or leg. Typical features include dramatic changes in the color and temperature of the skin over the affected limb or body part, accompanied by intense burning pain, skin sensitivity, sweating, and swelling. Doctors aren’t sure what causes CRPS. In some cases the sympathetic nervous system plays an important role in sustaining the pain. Another theory is that CRPS is caused by a triggering of the immune response, which leads to the characteristic inflammatory symptoms of redness, warmth, and swelling in the affected area.

Is there any treatment?

What is the prognosis?

What is Spinal Cord Injury?

A spinal cord injury usually begins with a sudden, traumatic blow to the spine that fractures or dislocates vertebrae. The damage begins at the moment of injury when displaced bone fragments, disc material, or ligaments bruise or tear into spinal cord tissue. Most injuries to the spinal cord don’t completely sever it. Instead, an injury is more likely to cause fractures and compression of the vertebrae, which then crush and destroy the axons, extensions of nerve cells that carry signals up and down the spinal cord between the brain and the rest of the body. An injury to the spinal cord can damage a few, many, or almost all of these axons. Some injuries will allow almost complete recovery. Others will result in complete paralysis.

Is there any treatment?

Improved emergency care for people with spinal cord injuries and aggressive treatment and rehabilitation can minimize damage to the nervous system and even restore limited abilities.  Respiratory complications are often an indication of the severity of spinal cord injury   About one-third of those with injury to the neck area will need help with breathing and require respiratory support. The steroid drug methylprednisolone appears to reduce the damage to nerve cells if it is given within the first 8 hours after injury.  Rehabilitation programs combine physical therapies with skill-building activities and counseling to provide social and emotional support.

What is the prognosis?

What Do the Knees Do?

The knees provide stable support for the body. They also allow the legs to bend and straighten. Both flexibility and stability are needed to stand, walk, run, crouch, jump, and turn. Other parts of the body help the knees do their job. These are:

• Bones
• Cartilage
• Muscles
• Ligaments
• Tendons.

If any of these parts are injured, the knee may hurt and not be able to do its job.

Who Gets Knee Problems?

Men, women, and children can have knee problems. They occur in people of all races and ethnic backgrounds.

What Causes Knee Problems?

Mechanical knee problems can be caused by:

• A direct blow or sudden movements that strain the knee
• Osteoarthritis in the knee, resulting from wear and tear on its parts.

Inflammatory knee problems can be caused by certain rheumatic diseases, such as rheumatoid arthritis and systemic lupus erythematosus (lupus). These diseases cause swelling which can damage the knees permanently.

How Are Knee Problems Diagnosed?

Doctors diagnose knee problems by using:

• Medical history
• Physical examination
• Diagnostic tests (such as x rays, bone scan, CAT scan, MRI, arthroscopy, and biopsy).

Arthritis in the Knees

The most common type of arthritis of the knee is osteoarthritis. In this disease, the cartilage in the knee gradually wears away. Treatments for osteoarthritis are:

• Medicines to reduce pain, such as aspirin and acetaminophen
• Medicines to reduce swelling and inflammation, such as ibuprofen and nonsteroidal anti-inflammatory drugs (NSAIDs)
• Exercises to improve movement and strength
• Weight loss.

Rheumatoid arthritis is another type of arthritis that affects the knee. In rheumatoid arthritis, the knee becomes inflamed and cartilage may be destroyed. Treatment includes:

• Physical therapy
• Medications
• Knee replacement surgery (for a seriously damaged knee).

Cartilage Injuries and Disorders

Chondromalacia (KON-dro-muh-lay-she-uh) occurs when the cartilage of the knee cap softens. This can be caused by injury, overuse, or muscle weakness, or if parts of the knee are out of alignment. Chondromalacia can develop if a blow to the knee cap tears off a piece of cartilage or a piece of cartilage containing a bone fragment.

The meniscus (meh-NISS-kus) is a C-shaped piece of cartilage that acts like a pad between the femur (thigh bone) and tibia (shin bone). It is easily injured if the knee is twisted while bearing weight. A partial or total tear may occur. If the tear is tiny, the meniscus stays connected to the front and back of the knee. If the tear is large, the meniscus may be left hanging by a thread of cartilage. The seriousness of the injury depends on the location and the size of the tear.

Treatment for cartilage injuries includes:

• Exercises to strengthen muscles
• Electrical stimulation to strengthen muscles
• Surgery for severe injuries.

Ligament Injuries

Two commonly injured ligaments in the knee are the anterior cruciate ligament (ACL) and the posterior cruciate ligament (PCL). An injury to these ligaments is sometimes called a “sprain.” The ACL is most often stretched or torn (or both) by a sudden twisting motion. The PCL is usually injured by a direct impact, such as in an automobile accident or football tackle.

The medial and lateral collateral ligaments are usually injured by a blow to the outer side of the knee. This can stretch and tear a ligament. These blows frequently occur in sports such as football or hockey.

Ligament injuries are treated with:

• Ice packs (right after the injury) to reduce swelling
• Exercises to strengthen muscles
• A brace
• Surgery (for more severe injuries).

Tendon Injuries and Disorders

The three main types of tendon injuries and disorders are:

• Tendinitis and ruptured tendons
• Osgood-Schlatter disease
• Iliotibial band syndrome

Tendon injuries range from tendinitis (inflammation of a tendon) to a ruptured (torn) tendon. Torn tendons most often occur from:

• Overusing a tendon (particularly in some sports). The tendon stretches like a worn-out rubber band and becomes inflamed.
• Trying to break a fall. If thigh muscles contract, the tendon can tear. This is most likely to happen in older people with weak tendons.

One type of tendinitis of the knee is called jumper’s knee. In sports that require jumping, such as basketball, the tendon can become inflamed or can tear.

Osgood-Schlatter disease is caused by stress or tension on part of the growth area of the upper shin bone. It causes swelling in the knee and upper part of the shin bone. It can happen if a person’s tendon tears away from the bone, taking a piece of bone with it. Young people who run and jump while playing sports can have this type of injury.

Iliotibial band syndrome occurs when a tendon rubs over the outer bone of the knee causing swelling. It happens if the knee is overused for a long time. This sometimes occurs in sports training.

Treatment for tendon injuries and disorders includes:

• Rest
• Ice
• Elevation
• Medicines such as aspirin or ibuprofen to relieve pain and reduce swelling
• Limiting sports activity
• Exercise for stretching and strengthening
• A cast, if there is a partial tear
• Surgery for complete tears or very severe injuries.

Other Knee Injuries

Osteochondritis dissecans (OS-tee-oh-kon-DRI-tis DIS-secans) occurs when not enough blood goes to part of the bone under a joint surface. The bone and cartilage gradually loosen and cause pain. Some cartilage may break off and cause sharp pain, weakness, and locking of the joint. A person with this condition may develop osteoarthritis. Surgery is the main treatment.

• If cartilage fragments have not broken loose, a surgeon may pin or screw them in place. This can stimulate new blood flow to the cartilage.
• If fragments are loose, the surgeon may scrape the cavity to reach fresh bone and add a bone graft to fix the fragments in position.
• Research is being done to investigate cartilage and tissue transplants.

Plica (PLI-kah) syndrome occurs when bands of tissue in the knee called plicae swell from overuse or injury. Treatments for this syndrome are:

• Medicines such as aspirin or ibuprofen to reduce swelling
• Rest
• Ice
• Elastic bandage on the knee
• Exercises to strengthen muscles
• Cortisone injection into the plicae
• Surgery to remove the plicae if the first treatments do not fix the problem.

What Kinds of Doctors Treat Knee Problems?

Injuries and diseases of the knees are usually treated by an orthopaedist (a doctor who treats problems with bones, joints, ligaments, tendons, and muscles).

How Can People Prevent Knee Problems?

Some knee problems (such as those resulting from an accident) can’t be prevented. But many knee problems can be prevented by doing the following:

• Warm up before playing sports. Walking and stretching are good warm-up exercises. Stretching the muscles in the front and the back of the thighs is a good way to warm up the knees.
• Make the leg muscles strong by doing certain exercises (for example, walking up stairs, riding a stationary bicycle, or working out with weights).
• Avoid sudden changes in the intensity of exercise.
• Increase the force or duration of activity slowly.
• Wear shoes that fit and are in good condition.
• Maintain a healthy weight. Extra weight puts pressure on the knees.

What Types of Exercise Are Best for Someone With Knee Problems?

Three types of exercise are best for people with arthritis:

• Range-of-motion exercises. These exercises help maintain or increase flexibility. They also help relieve stiffness in the knee.
• Strengthening exercises. These exercises help maintain or increase muscle strength. Strong muscles help support and protect joints with arthritis.
• Aerobic or endurance exercises. These exercises improve heart function and blood circulation. They also help control weight. Some studies show that aerobic exercise can reduce swelling in some joints.

Source: National Institutes of Health

Whiplash-a soft tissue injury to the neck-is also called neck sprain or neck strain. It is characterized by a collection of symptoms that occur following damage to the neck, usually because of sudden extension and flexion. The disorder commonly occurs as the result of an automobile accident and may include injury to intervertebral joints, discs, and ligaments, cervical muscles, and nerve roots. Symptoms such as neck pain may be present directly after the injury or may be delayed for several days. In addition to neck pain, other symptoms may include neck stiffness, injuries to the muscles and ligaments (myofascial injuries), headache, dizziness, abnormal sensations such as burning or prickling (paresthesias), or shoulder or back pain. In addition, some people experience cognitive, somatic, or psychological conditions such as memory loss, concentration impairment, nervousness/irritability, sleep disturbances, fatigue, or depression.

Is there any treatment?

What is the prognosis?

A.  Research shows that driving while using a cell phone can pose a serious cognitive distraction and degrade driver performance.  The data are insufficient to quantify crashes caused by cell phone use specifically, but NHTSA estimates that driver distraction from all sources contributes to 25 percent of all police-reported traffic crashes.

Q.  Is it safe to use hands-free (headset, speakerphone, or other device) cell phones while driving?

A.   The available research indicates that whether it is a hands-free or hand-held cell phone, the cognitive distraction is significant enough to degrade a driver’s performance.  This can cause a driver to miss key visual and audio cues needed to avoid a crash.

Q.  In an emergency should I use my cell phone while driving?

A.  As a general rule, drivers should make every effort to move to a safe place off of the road before using a cell phone.  However, in emergency situations a driver must use their judgment regarding the urgency of the situation and the necessity to use a cell phone while driving.

Q.  Is NHTSA conducting further research to better quantify the safety impact of using cell phones while driving? 

A.  NHTSA is conducting research projects on driver cell phone use and will continue to monitor the research of others on this subject.  As we learn more about the impact of cell phone use on driver performance and crash risk, and as wireless technologies evolve and expand, NHTSA will make its findings public.

Q. Is talking on a cell phone any worse than having a conversation with someone in the car?

A. Any activity a driver engages while driving has the potential to distract the driver from the primary task of driving.  Some research findings comparing cell phone use to passenger conversations while driving, show each to be equally risky, while others show cell phone use to be more risky.  A significant difference between the two is the fact that a passenger can monitor the driving situation along with the driver and pause for, or alert the driver to, potential hazards, whereas a person on the other end of the phone line is unaware of the roadway situation. 

Q.  What do the studies say about the relative risk of cell phone use when compared to other tasks like eating or drinking?

A.  The current research does not provide a definitive answer as to which behavior is riskier.  In a controlled study, comparing eating and operating a voice-activated cell phone to continuously operating a CD player, it was found that the CD player operation was more distracting than the other activities.  In a test track study conducted by NHTSA, the results showed that manual dialing was about as distracting as grooming/eating, but less distracting than reading or changing CDs.  It is also important to keep in mind that some activities are carried out more frequently and for longer periods of time and may result in greater risk.

SOURCE: National Highway Traffic Safety Administration   ]]> http://barreralawfirm.com/2009/01/31/cell-phones-and-driving/feed/ 1 http://barreralawfirm.com/2009/01/28/ice-storms-winter-weather-and-car-accidents/ http://barreralawfirm.com/2009/01/28/ice-storms-winter-weather-and-car-accidents/#comments Wed, 28 Jan 2009 14:21:10 +0000 dan http://barreralawfirm.com/?p=956 Every winter there is an uptick in the number of new client calls to Virginia, Maryand, and Washignton, D.C. injury lawyers. Invariably there has been a recent change in the weather (for the worse), and someone has been involved in an accident. In some areas of the country the general popuilation knows how to handle the winter weather, and they prepare for it. In the mid-atlantic states of Virginia, Maryland and in Washington D.C, where some winters may not receive any snow or ice, the general poulation is usually not prepared, and nor sufficiently experienced in winter driving. This is especially true during the first winter weather event of the season.

Despite the increase in calls of people seeking the help of lawyers after an accident, unfortunately the weather plays a large role in whether a case is accepted. When someone claims there was black ice, or some other road condition that contributed to the accident, it becomes an uphill battle to prove that the other driver was responsibile, especially when the police report clearly identifies the roads as wet, icy or snow covered.  For this reason, there is a need to look beyond the road conditions, to the actual driving of the defendant to determine whether he or she should be held responsible. Was the other driver speeding? This would be especially dangerous on snowy or icy roads. Was the other driver attempting to perform some maneuver which regardless of the weather conditions would be negligent? Was the other driver’s windshield and windows free of ice and snow? If visibility is an issue, this might be the key to the case.  It makes complete sense to consult with a lawyer following an accident, and especially so after a weather related accident. The best advise is what your parents likely told you, stay off the roads during bad weather and slow down.

Consider if you are involved in an accident with an uninsured driver. Should you have tried to save a few bucks, as many people do, and purchased a minimum limits policy under Virginia law, you would have only a maximum of $25,000 to cover the all the losses of any one indivdual. If more than one person was injured in the accident there would be a maximum of $50,000 to compensate you and your passengers. It is all too easy to think of situations where limits of $25,000/$50,000 would be woefully inadequate. In times of recession, people might just miss that car insurance bill, or put off paying it, for any number of reasons. With an expected increase uninsured drivers on our roads, it makes complete sense to revisit your unisured/underinsured automobile insurance limits. 

In Virginia, every driver receives uninsured/underinsured motorist coverage with the same limits as the liability limits. You can always ask for more coverage, but that is entirely up to you. If the idea is to fully protect your family, you would want the highest limits your automobile insurance carrier offers.Automobile insurance carriers offer different maximums. Some insurers will offer a one Million single limit policy. Other insurance carriers might max out at $500,000.00. It makes absolute sense to get the highest uninsured/underinsured motorist coverage available.  The cost is not prohibitive, and the peace of mind that you receive by purchasing higher limits is worth the cost.

The common understanding regarding automobile insurance is that it is there to pay others in the event that you cause injury due to your negligence. Personal automobile insurance in Virginia provides for minimum liability coverage limits of $25,000/$50,000.

This minimum limit means that your personal automobile insurance carrier will pay a maximum of $25,000 per person, and $50,000 per accident for injuries arising from any one accident. In the event you injure someone as a result of your negligence, the other person will receive a maximum of $25,000 from your personal automobile liability insurance, and not a penny more. However, there are many situations where $25,000/$50,000 in coverage is wholly insufficient.

Consider the following: You to hit another car with 5 occupants, and severely injure all 5 people. Because of your low limits of liability coverage, each person receives a maximum of $5,000 each, despite the severity of their injuries. I have seen too many cases over the years where unfortunately there wasn’t enough insurance coverage to pay for otherwise serious injuries.

In the event there was an accident where someone died, the surviving family members would be able to recover a maximum of $25,000 from your insurance. How would you feel if a family member died as a result of someone else’s negligence, and the maximum recoverable from the insurance was only $25,000.

The real problem arises when the injured party, not satisfied with the low insurance payout, begins to take steps to collect money directly from you. Your life savings could be put at risk all because you tried to save a few bucks paying a little less in auto insurance each year. This is generally a bad idea. Having higher limits of liability protects your assets in the event you have a claim where you might be held at fault for greater than $25,000 minimum limit available to any individual plaintiff. Virginia Liability policies range from 25,000/50,000 to 50,000/100,000, 100/300, 300/500, and 500/1mil. Having high Liability limits in Virginia, by law, also provides you with uninsured/underinsured motorist coverage equal to your liability coverage limits unless you elect otherwise. Having high underinsured motorist coverage limitscasn make the difference between receiving full recovery or receiving only what the defendant has in coverage. In this day and age, you should never rely upon the insurance coverage of someone else to provide you with the benefits you need. You need to protect yourself and your loved ones. One of the eaisiest ways to protect yourself and your family is to purchase high uninsured/underinsured motorist coverage. Continued in Part 2.

About one in six drivers in the U.S. might be driving without insurance by 2010, according to a recent study.

The estimated percentage of uninsured motorists decreased to 13.8 percent in 2007 from 14.9 percent in 2003, but it’s expected to sharply increase because of the recession, the Malvern, Penn.-based Insurance Research Council reported Wednesday.

The council estimated the number of uninsured motorists by using a ratio of insurance claims made by people injured by uninsured drivers to claims by people injured by insured drivers.

An increase of 1 percent in the unemployment rate is associated with an increase of nearly three-quarters of a percent in the uninsured motorist rate, the council reported. The council expects the rate to rise from 13.8 percent in 2007 to 16.1 percent in 2010.

How do you protect yourself and your family from uninsured drivers? The answer is relatively simple. When you purchase or renew your personal automobile insurance policy, consider your uninsured/underinsured insurance limits. You should make sure that you have enough of this coverage to cover you and your loved ones in the event of an accident.

• Check your tires. The number one defect which contributed to fatalities on Virginia roads in 2007 was defects in the tires. Too many people do not pay attention to the tread on their tires. Considering that over two deaths per month on Virginia roads in 2007, it would be a good idea to periodically check your tires. Both under-inflation and over-inflation can cause a tire to lose its ability to grip the road as it was designed. Tires that are bald are dangerous and should be replaced. Any physical damage to the sidewall of the tire could contribute to causing an accident or worse. Pay attention to your tires and avoid becoming a just another statistic.
   
• Slow down. The amount of time that can be gained by speeding is negligible. You might that you’re making up lost time as you speed on the roads, but you are putting yourself needlessly at risk. The number one factor contributing to Virginia fatalities in 2007 was speed. Fully 13% of all deaths on Virginia roads were caused by excessive speed. 
   
• Stay in the right hand lane, and yield to other drivers. The second and third most common driver errors contributing to deaths on Virginia roads in 2007 were driving to the left of center line,and failing to yield. If you can drive in the right hand lane, do so. Let other cars pass and turn in front of yours. Stay safe.
   
• Don’t drive when you are tired. There were 38 deaths on Virginia roads in 2007 caused by drivers who were either fatigued, or asleep. Over three people per month died becase they should have been sleeping instead of driving. If your tired or sleepy, pull over and get some rest, your life may depend on it.
   
• Don’t drink and drive. Common sense. There were 82 deaths on Virginia roads in 2007 related to drinking and driving. If you must drink, do it at home and stay there. Use a designated driver, or call a taxi. It makes no sense to drink and drive.
   
• Slow down in bad weather. It was raining during 66 Virginia traffic accident fatalities in 2007. 
   
• Do not try to pass in a no passing zone. 19% of all Virginia vehicle fatalities occurred a driver was trying to pass another car in a no passing zone. 177 persons were killed as a result of someone who couldn’t wait, or thought the car in front was driving too slow.  No passing zones are there for a reason. Please obey the Virginia traffic laws and keep yourself and your family safe.

Source: 2007 Virginia Traffic Crash Facts: Virginia Department of Motor Vehicles

• 1,626 persons were killed on Virginia roads in 2007, the last year with available statistics according to the Virginia Department of Motor Vehicles. That number represents a 6.76% increase from 2006.
• While the number of deaths on Virginia roads increased in 2007, there were 68,822 injury accidents which represents 6.17% decrease in the number of injury accidents from 2006
• There were 145,405 traffic accidents in Virginia in 2007, which represents a 4.14% decrease from 2006.
• In all of Virginia, there were 378 persons needlessly killed in alcohol related crashes, a 1.07% increase from the prior year.
• There were 7,130 persons injured in alcohol related crashes, which represents a 5.48% decrease from 2006.
• 30 Virginia teenagers were killed in alcohol related accidents, representing approx. 3% of all Virginia traffic fatalities.
• 759 Virginia teenagers were injured in alcohol related accidents.
• In Virginia statewide for all of 2006, 25,243 persons were tested with a blood alcohol content of (BAC) of.08 percent or greater. This represents a 1.27% increase from the prior year. The average BAC of tested drinking drivers was .1407. Approximately 80% of of those drunk drivers were male.
• In Virginia in 2006, 28,787 persons were convicted of DWI/DUI, a 2.73% decrease from 2006.
• October 2007 was  the most dangerous month on Virginia roadways with the highest number of accidents (14,147), and the highest number of fatal crashes.
• December 2007 was the most dangerous month of the year on Virginia roads with 1,079 alcohol related accidents. There were more alcohol related fatalities in September than in any other month in Virginia in 2007.
• In Virginia there is on average one accident every 3.61 minutes. One driver out of approximately 20 is involved in a car accident each year. Roughly 3 lives are lost per day because of traffic crashes. 189 persons are injured per day as a result of traffic crashes.

Source: 2007 Virginia Traffic Crash Facts, Virginia Department of  Motor Vehicles.

The County with the lowest death rate per 1000 licensed drivers is Arlington County with a death rate of 0.04 per 1000 licensed Virginia drivers. With over 746,000 licensed drivers, Fairfax County is one of the most congested counties in the Commonwealth. The sheer volume of traffic causes the death rate to be so high. However, as a consequence of the number of drivers, our traffic is much more highly regulated than other counties. The Virginia County with dubious honor of having highest death rate per 1000 licensed drivers is Highland County, West of Charlottesville, bordering West Virginia. Highland County, with roughly 2000 licensed drivers, has a death rate of 1.46 per 1000 drivers. You might think that the road were safer in the hills and mountains of Virginia, but you would be sadly mistaken.

The impact between the car and the motorcycle was severe. Our client was an expert motorcycle mechanic, and had customized his bike to a large degree. Unfortunately, the motorcycle was totaled. Worse was the fact that despite wearing all the required safety equipment available, our client broke his forearm and required surgery. The surgery entailed a metal plate and screws to hold together the unstable fracture. After a number of months the plate and screws were removed, and our client after months of therapy, and two surgeries had finally reached maximum medical improvement. The treating orthopedic surgeon provided our client a 5% permanent partial disability rating. With approximately $23,000 in medical expenses, a 5% permanent partial disability, and approximately $10,000 in lost wages we were able to settle this matter to the satisfaction of our client.

The main issue in this case was the apparent inability of the defendant to appreciate the fact that there was motorcycle approaching him. This is one of the largest factors contributing to motorcycle accidents. Unless people begin to recognize that we share the road with motorcycles, there will undoubtedly be a continued increase in motorcycle accidents in Virginia.

These statistics for Car Accidents in the County of Fairfax can be compared with prior years as The Virginia Department of Motor Vehicles releases their annual statistics for Car Accidents throughout the Commonwealth.

Motor Vehicle traffic is highly regulated in the County of Fairfax, and yet the number of accidents seems to be on the rise. Perhaps this has been caused by the large construction projects on the Capitol Beltway (I-495) , or perhaps due to the ever increasing congestion in Northern Virginia. Unfortunately the official State statistics do not show the locations of the Fairfax County car accidents.

All told there were 1,403 injury accidents within the City of Alexandria.  Considering the difficulties in obtaining fair compensation from large insurance companies, it is always best to retain an experienced lawyer to represent your interests. Attached are the latest 2007 Fairfax County Car Accident statistics from the Virginia Department of Motor Vehicles. 2007-fairfax-county-car-accident-statistics

Virginia allows officers to use lights and sirens but only as may be reasonably necessary. As a result of this provision, although Fairfax officer Amanda Perry was charged with reckless driving for entering the intersection that fateful day when Ashley McIntosh was killed, she was found not guilty by a substitute judge from Stafford County.

Since that time, there have been many questions raised as to why Virginia would make it optional for a Police Officer to use all his emergency equipment when disregarding traffic laws. While the policy of Fairfax County is to have its officers use both lights and sirens, the state provision allows for the “reasonably necessary” loophole. Having both light and sirens functioning, provides valuable information to other drivers that they need to yield to the authorities, and get out of their way. In Fairfax, Alexandria and Arlington, Loudoun and Prince William Counties, the congestion that is almost always present on the roads requires that this law be changed.

Thankfully the surviving family of Ashley McIntosh have pushed to get “Ashley’s Law” introduced to the Virginia Legislature. Toddy Puller (D-Fairfax), and David Englin (D-Alexandria), will be introducing this bill to the legislature this session. It is time for Virginia to join the majority of states, and require the use of emergency lights and sirens without exception. This is too simple a proposition for our legislature to ignore. Please contact your state legislators and tell them that they should support “Ashley’s Law”.

Here are some suggestions, which should help:

• Don’t take anyone’s word for it. Get it in writing. It is not good enough that the doctor says you can’t work, get a disability slip which states you can’t.  Make sure you know for how long the doctor has taken you off of work, and be sure to return to your physician before your disability runs out. Every Workers Compensation doctor is familiar with disability slips and should not have any problem with giving you one, if necessary.
• Make sure you promptly get copies of your medical records. Nothing helps you more in the course of your claim than having copies of your medical records.
• If your employer doesn’t have light duty available to you, get something that states that. 

There are any number so different ways that you can go about protecting yourself just by getting the proper documentation should anyone question what is happening in your case. The most important thing to remember is that a workers compensation claim is a legal proceeding. You need to follow the law, and you will be held to a high standard should you decide to represent yourself. Taking a few simple steps will allow you to avoid headaches later in the claim.

In reality, none of the things that causes one to call a particular lawyer from the yellow pages has any real bearing on whether you should hire that lawyer or not. The same is mostly true about TV advertising. Some of the cheesiest ads have been lawyer ads, and they  have been resoundingly criticized and mocked over the years. Sirens, smashing gavels, helicopter sounds, exploding cars, or some talking head spokesperson should not have and influence on whether you call one lawyer or another. Thankfully, things have begun to change.

The Internet has begun to show that yellow page and TV ads for professional services really are a thing of the past. Five minutes spent at a good lawyer website can be more valuable than reading all the lawyers ads in the Northern Virginia Yellow pages. I have spent hours trying to answer questions from the public about problems that they have experienced in their workers compensation and personal injury claims, and will continue to do so. To the extent that you can walk away more knowledgeable after reading from our website, is more valuable to me than any ad we might place in the Yellow Pages.

So what should you look for in hiring a lawyer? Here is a list of some of the important factors to consider in hiring a lawyer:

1. Does the lawyer actually go to court or does he/she farm out your file to another firm should the case need litigation. You would be surprised how many lawyers do not handle their own litigation; they merely settle cases, and nothing more. If the insurance company makes a low ball offer there is no way for that lawyer to say “see you in court”. You should consider hiring a lawyer who has confidence in your case so that he/she can and will file suit and take your case to trial.
2. If the lawyer does go to Court, how many trials have they had? I have represented injured accident victims in well over 100 trials. Not many lawyers can say that. If something unusual happens in Court what is the probability that your lawyer will know how to handle it. It comes down to one word, experience. An experienced lawyer is your best ally in the Courtroom.
3. Is your lawyer willing to discuss the potential value of your case. Many lawyers have difficulty speaking with their clients regarding the value of case for fear of giving the client unrealistic expectations. There is no reason why an experienced lawyer shouldn’t be able to speak with a client regarding the potential value of their case at any time.
4. When you call the office, are you able to speak directly with the lawyer, or are your handed off to a staff member? Are you really that unimportant that the lawyer can’t take the time out of his day to discuss your case directly with you? I still can’t understand why people put up with this type of behavior.  If you hire a lawyer, and you need to speak directly with that lawyer, for whatever reason. You should, at a minimum, be able to get your call returned promptly. There are many times when clients call me, and I am unavailable as I am in Court, or in a meeting, however there is no reason why I can’t call that client back by the end of the day.
5. Does the lawyer return your calls? If he doesn’t, you should think about the kind of relationship you have with your lawyer, and what he or she would do if your didn’t return their calls.
6. Does the lawyer have a website, and is he available through e-mail? Welcome to the 21st Century. Yes, you can send me an email, and hopefully I have answered many of your questions on this website. There is no reason for a lawyer not to give you his or her e-mail address.
7. When you speak directly to your lawyer, is he or she able to explain things to you without resorting to legal terms? Do you get along well with this person? Lawyers speak for a living. Many can’t stop talking. That doesn’t mean that they are good communicators. Should push come to shove, you might need a good communicator to convince seven jurors that you should get what you deserve.
8. How much does the lawyer charge for an injury case? The standard charge is 1/3, and 20% for Workers’ Compensation cases. Why pay more? Perhaps you should speak with someone else should the lawyer ask for a higher percentage. Will the lawyer receive more than the client in connection with an injury claim? This is terrible situation that only makes injured accident victim feel victimized again by the legal system.

As you can see, the list of considerations in hiring a lawyer could go on and on,  and I could step on a few more toes along the way, but these are a few of the considerations that should point you in the right direction. Some lawyers don’t want you to hear or read these things. Some would much rather that you make up your mind based on the TV ad with the helicopter sounds, or the police lights. Legal cases can take years. Make sure that you will be able to stick with your lawyer from start to finish.

Over the past number of years there has been a large increase in the numbers of motorcyclists in Virginia. As Motorcycles have increased in popularity, the number of inexperienced motorcyclists has risen as well. Unfortunately, the most recent statistics tend to bear this out, with over 56% of all Virginia Motorcycle Accident fatalities in 2007 being single vehicle accidents.

We have handled many Virginia Motorcycle accidents, and have seen the devastation that results from another motor vehicle impact an unprotected driver. While the latest statistic show a 97% compliance with the Virginia Helmet requirement, the use of a helmet should not give one a false sense of security. To see the Official Virginia Department of Motor Vehicles graphs showing 2007 Virginia Motorcycle Accident statistics click here: Virginia Motorcycle Accident Fatalities, class_fatality_chart

The number one mature driver action contributing to crashes is “failure to Yield”. Perhaps this explains why the Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have seen so many failure to yield collisions over the years. Unfortunately, this type of accident is becoming more common as congestion on our roads get worse.

The number two mature driver action contributing to crashes is “Following too Closely”. This explains why the Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have seen so many read end collision with such frequency in Northern Virginia.

The number three mature driver action contributing to crashes is “Ran Traffic Control”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have handled many cases the responsible driver “ran the red light”. In Northern Virginia, Fairfax, Arlington and Alexandria, where everyone seems to be trying to get from here to there as fast as possible, or is running behind schedule, obeying the traffic controls becomes critical.

The number four mature driver action contributing to crashes is “Improper Lane Change”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have seen many cases where the driver simply was unable to see the other car as it was in its blind spot, or that the driver just failed to look. While not an excuse to driver negligence, in Northern Virginia, Fairfax, Arlington and Alexandria, congestion on the roads remains a problem, will not be getting better any time soon.

The number five driver action contributing to crashes is “Improper Turn”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have handled many cases involving someone making an improper turn. The fast pace in Northern Virginia, Fairfax, Arlington and Alexandria, contributes to this problem. It is all too common to hear of an accident after someone disobeys the traffic laws.

To see the Official Chart from the Virginia Department of Motor Vehicles click on the following link. top_five_mature_chart2007

The number one young driver action contributing to crashes is “following too closely”. Perhaps this explains why the Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have seen so many rear end accidents where young drivers fail to keep their cars under control.

The number two young driver action contributing to crashes is “Failing to Yield”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have too many sad cases where a young driver tries to scoot in front of traffic with disastrous results. This must be linked to the terrible congestion on our roads in Northern Virginia.

The number three young driver action contributing to crashes is “Speed”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have handled many cases involving excessive speed. In Northern Virginia, Fairfax, Arlington and Alexandria, speed remains a problem on our highways where everyone seems to be trying to get from “Point A” to “Point B” as fast as they can. This is the same position as that of adult drivers. See our other posts.

The number four young driver action contributing to crashes is “Driver Distraction”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have seen many cases where a young driver was distracted by a cell phone or by other passengers. There are limits to the number of passengers a young driver can have in a car for good reason.

The number five young driver action contributing to crashes is “ran traffic control”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have handled many cases involving someone running red light. The fast pace in Northern Virginia, Fairfax, Arlington and Alexandria, contributes to this problem. It is all too common to hear of an accident after someone disobeys the traffic laws.

To see the Official Chart of the Department of Motor Vehicles click on the following link. top_five_young_chart2007-all-crashes

The number one driver action contributing to crashes is “following too Closely”. Perhaps this explains why the Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have seen so many rear end collisions over the years.

The number two driver action contributing to crashes is “Failing to Yield the Right of Way”. This explains why the Alexandria Injury Lawyers have seen failure to yield with such frequency in Northern Virginia, that we think it must be linked to the congestion on our roads.

The number three driver action contributing to crashes is “Speed”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have handled many cases involving excessive speed. In Northern Virginia, Fairfax, Arlington and Alexandria, speed remains a problem on our highways where everyone seems to be trying to get from “Point A” to “Point B” as fast as they can.

The number four driver action contributing to crashes is “improper lane change”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have seen many cases where the driver simply was unable to see the other car as it was in its blindspot, or that the driver just failed to look. While not an excuse to driver negligence, in Northern Virginia, Fairfax, Arlington and Alexandria, congestion on the roads remains a problem, and will not be getting better any time soon.

The number five driver action contributing to crashes is “ran traffic control”. The Alexandria and Fairfax Car Accident and Personal Injury Lawyers at the Barrera Law Firm have handled many cases involving someo