VIRGINIA:          12/31/2003

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.

VIRGINIA:        01/07/2004

IN THE WORKERS’ COMPENSATION COMMISSION

MARIO BALDIVIESO, Claimant

Opinion by DIAMOND

Commissioner

v.                                                                                                                               VWC File No. 210-42-74

LABOR FINDERS OF VA., INC., Employer

AMERICAN CASUALTY CO., Insurer

Daniel P. Barrera, Esquire

1650 King Street, #505

Alexandria, Virginia 22314

for the claimant.

(Copy sent by Priority Mail)

Joshua M. Wulf, Esquire

6862 Elm Street, Suite 410

McLean, Virginia 22101

for the defendants.

(Copy sent by Priority Mail)

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

The employer requests Review of the deputy commissioner’s July 29, 2003, Opinion.  The claimant alleged that he suffered an injury by accident on June 25, 2002, when he suffered a heat stroke at work.  The deputy commissioner found that the injury arose out of the employment, and the employer appeals.  The employer also appeals the deputy commissioner’s finding that the claimant was disabled.  We AFFIRM.

We adopt the deputy commissioner’s summary of the relevant evidence and will not restate it here.  Briefly, the claimant was working as a trash collector on June 25, 2002.  Toward the end of the day, Kiki Gouveia, who was working with the claimant, noticed that “there was something wrong” with the claimant.  Gouveia stated that the claimant “looked like he was disoriented, looking for things in his pocket and looking underneath the truck.”  Gouveia stated that the claimant was slurring his speech and shaking.  He called for help, and the claimant was taken for emergency treatment.  The record showed that the claimant suffered brain damage related to heat stroke.  He was in intensive care from June 25 to August 7, 2002, and stayed in the hospital until September 20, 2002.  He then was transferred to the Loudoun Long Term Care Center, where he presently lives.

Gouveia testified that he drove the trash truck used by the two men on June 25, 2002.  He stated that the claimant rode on the back of the truck, except that on occasion he rode in the cab.  Gouveia stated that he did not run the air conditioning in the cab because it was his understanding that it caused the truck to overheat.  Gouveia stated that it was 95 degrees on the day in question, and that it was “very stuffy and hot.”  Other than a break in the middle of the day to dump the truck, at which point they also stopped at a store to buy lunch, Gouveia stated that the two did not take any breaks.  He stated that he is paid a daily rate, and that the claimant’s services were provided by a temporary agency for his assistance.  Gouveia stated that he “pushed to get my route” in order to finish as quickly as possible.  Gouveia explained that the claimant placed the trash into the truck.  If the claimant required assistance, Gouveia provided it.  Gouveia estimated that he and the claimant had performed approximately 600 pickups when the claimant became ill.

Steve Barton, the operations manager for the route in question, testified that it was “extremely hot” on June 25, 2002.  He estimated that the temperature was 95 degrees and stated that the humidity was “extremely high, too.”  Barton stated that the claimant either went house to house on a sidewalk picking up trash, or rode on the back of the truck along the route, unless the distance was greater than one-half mile, when he would ride in the cab.  Barton stated that there was a step on the back of the truck, and that it was not shaded.  Barton stated that he reported to the scene of the accident after it was called in.  He stated that the accident took place in “a new section of Leesburg.  It’s wide open and not many trees around.”  Climate data submitted by the parties showed that at Dulles International Airport, the high temperature on June 25, 2002, was 93 degrees, with a relative humidity level of 50% at 3:51 p.m. and 54% at 4:51 p.m., the approximate time of the accident.

The medical evidence showed that the claimant suffered “probable permanent brain damage from his heat stroke,” as noted by Dr. Richard Rosenthal on September 13, 2002.  Dr. Rosenthal noted on June 25, 2002, that the claimant had been found next to his truck with a temperature of 109 degrees and no pulse.  He was intubated and brought to the hospital, where he received “large volume resuscitation.”  A CT scan showed a “small probable bleed in the temporal lobe on the left.”  On September 6, 2002, Dr. Page Fletcher noted that the claimant had suffered “acute renal failure when admitted.”  Dr. Fletcher diagnosed the claimant with “post-traumatic dementia secondary to the heat stroke.”  He recommended discharge to long-term care “in a team approach to find the optimal setting of care for this man that is slowly improving.”  He prescribed anti-dementia medication and noted that “any help in cognition will help him further perform the work of rehabilitation.”

On September 13, 2002, Dr. Rosenthal diagnosed the claimant with “probable permanent brain damage from his heat stroke.”  Dr. Rosenthal further noted that the claimant was “Unable to perform daily chores associated with taking care of himself and his independent survival.”  Records from Loudoun Long Term Care were minimal, but showed that the claimant receives occasional psychiatric consultation.  On March 21, 2003, the claimant was diagnosed with “major depression assoc. with brain damage.”  On April 11, 2003, the claimant was diagnosed with “dementia after heat stroke with depression.”

The deputy commissioner found that the claimant’s injury arose out of his employment.  The employer argues that this was erroneous because the evidence did not show any extraordinary environmental conditions or work activities that would distinguish the claimant from any other outdoor worker on June 25, 2002.  We agree with the deputy commissioner.

The claimant worked a long day on June 25, 2002, in temperatures that were very hot.  The weather records from Dulles International Airport showed a high of 93 degrees, and the witness testimony showed that the temperatures and humidity on the claimant’s route made the weather “very stuffy and hot” and “extremely hot.”  The claimant spent most of the day walking alongside the truck, picking up trash bags, or riding on the back of the truck between pickups.  It is not speculative to conclude that the roadways used for the route were not shaded.  As for the site of the accident, the evidence showed that it was a new development that was “wide open” and without tree cover.  Finally, and importantly, the claimant’s temperature at the scene was noted to be 109 degrees, which obviously is not a condition commonly experienced by other outdoor workers.

The employer attributes the claimant’s injury to his decision to wear long-sleeves and multiple layers of clothing.  There was no evidence, however, that the claimant’s attire contributed to his injury.  To the contrary, it would be just as reasonable to conclude that long-sleeves were appropriate, given that the claimant worked in the sun.  In conclusion, the evidence was clear that the claimant suffered a heat stroke on June 25, 2002, as a result of his employment. The injury was the result of working outside on a very hot day in summer, when the majority of his time was spent either walking alongside a trash truck, picking up and throwing trash into the truck, or riding on the back of the truck.  Unlike other workers, he was not protected from the elements, and at the time of the accident, his body temperature was 109 degrees.  Finally, Dr. Rosenthal noted on September 13, 2002, that the heat stroke was caused by his work and there was no reason for his heat stroke other than his work.  We believe the deputy commissioner’s decision was correct.

The employer further argues that the deputy commissioner erred in awarding continuing total disability benefits as of the May 22, 2003, hearing, because the most recent opinion as to the claimant’s condition was Dr. Rosenthal’s September 13, 2002, assessment.  The evidence showed that the claimant’s injuries were severe, causing “probable permanent brain damage” and resulting in his being confined to a long-term care facility.  As recently as April 11, 2003, he was diagnosed with “dementia after heat stroke with depression.”  While we agree with the employer that disability should not be presumed, we believe that the evidence showed that the claimant, who was hospitalized for approximately three months after the accident and was discharged, with diagnoses of brain damage and dementia, to long-term care, where he had lived for eight months at the time of the hearing, continued to be disabled.  Moreover, the deputy commissioner noted his observation of the claimant at the hearing, which confirmed the claimant’s catastrophic injuries.  We note that the Claim was not for permanent total disability, but for temporary total disability, and we agree with the deputy commissioner that the evidence showed that at the time of the hearing the claimant was totally disabled as a result of the accident.

For these reasons, the July 29, 2003, Opinion is AFFIRMED.  Interest on the Award is payable pursuant to Code 65.2-707.

The attorney’s fee awarded to counsel for the claimant is increased to a total fee of $1,400.00, to be paid directly to counsel from accrued compensation.

This matter is removed from the Review docket.

APPEAL

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

VIRGINIA:          03/22/2004

IN THE WORKERS’ COMPENSATION COMMISSION

JOSE GARCIA, Claimant

Opinion by the

COMMISSION

v.                                                                                                                              VWC File No. 212-98-78

D.L. MONGOLD CONSTRUCTION, Employer

WCAMC CONTRACTORS GROUP, Insurer

Daniel P. Barrera, Esquire

1650 King Street, #505

Alexandria, Virginia 22314

for the Claimant.

(Copy sent Priority Mail)

Frederick T. Schubert, Esquire

9030 Stony Point Parkway, Suite 160

Richmond, Virginia 23235

for the Defendants.

(Copy sent Priority Mail)

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

This case is before the Commission on the employer’s request for Review of the Deputy

Commissioner’s July 31, 2003, Opinion.  The employer takes exception to the findings that this claim for injury by accident on January 7, 2003, is not barred by willful misconduct, and that the claimant is entitled to temporary total disability benefits from January 7, 2003, and continuing. We AFFIRM.

The claimant, who has a sixth grade education, testified through an interpreter that on January 7, 2003, he was working for the employer in a basement structure, helping to lift an iron beam.  The claimant stated that the floor of the basement was icy and very slippery.  There were approximately five people working on this task and they were being rushed because the concrete was going to be poured next.  He testified that as they were lifting the structure, he tried to stand up and “all I know is that this thing was on top of me.”  The claimant earlier testified that as they were trying to put up the structure, he slipped and the structure fell on his head.

The claimant also testified that at one point during the process of lifting the beam he was standing next to Victor Prieto.  The claimant testified that he slipped while standing next to Mr. Prieto.  Mr. Prieto tried to grab the claimant and pull him back but the beam was already on top of him. The claimant denied receiving any warning about staying away from the iron structure.

Eduardo Prieto, a carpenter, translator, and supervisor for the employer, testified that on January 7, 2003, six workers were present at the time that a 500-pound steel beam needed to be set at a house that was being constructed.  He confirmed that there was a lot of ice in the house.   Mr. Prieto stated that the beam was resting on concrete in the garage.  He and Josh Jones moved the beam at first, sliding it into the basement.  Mr. Prieto testified that he had never done this before and he had no experience with it.  He discussed the task of dropping the beam into the basement with Jake Mongold, a foreman, and it was determined that the beam would be dropped because it was icy and the workers would need to “move away.”

Mr. Prieto testified that Jake advised the workers to move away in English, and Mr. Prieto then said, “move away” in Spanish.  Mr. Prieto testified that the claimant did not move away at first, so he said a second time, “move away” because the beam was going to be dropped.  His brother also repeated the warning.  Mr. Prieto testified that on the second warning, the claimant moved against the wall close to Mr. Prieto and his brother.  The beam was going to be dropped on the count of three.  Mr. Prieto testified that he did not translate the count for the claimant or for his brother.

Mr. Prieto testified that the floor in the basement was wet but not slippery.  He also testified that there was ice in the basement.  He did not see the claimant slip.  He heard Darrell Day say, “watch out” but that is all he remembers.  Mr. Prieto did not hear the claimant say anything.  He did not see the beam fall on the claimant or how it happened because he was looking away when Jake Mongold started the count.

Darryl Day, a carpenter for the employer, testified that a beam is rarely dropped into a basement the way it was on January 7, 2003; however, because of the weather Jake Mongold felt it was safer.  Mr. Day testified that on the morning of January 7, 2003, one end of the beam was slid into the basement and hit on the concrete slab, and the other end was being dropped into the basement.  Mr. Day understood that there was going to be a count of three by Jake or Josh before the beam was dropped, and that Eduardo was going to tell the Spanish-speaking individuals what was going to happen.  Mr. Day saw Eduardo speak to them but he does not know what was said, as he does not speak Spanish.  After this discussion, Mr. Day observed the Spanish-speaking workers standing about five or six feet away from the beam.  He also saw the claimant take two steps toward the beam at the end of the count and bend his head to go under the beam.  Mr. Day testified that the beam was dropped and hit the claimant in the back of the head.  He did not see the claimant slip.

Mr. Day admitted that in his deposition, he testified that he did not see the claimant take any steps, that all he saw was the claimant going underneath the beam and he yelled for him to stop.   At one point during the hearing Mr. Day testified that he saw the claimant take two steps, and at another point he testified that he saw the claimant take two steps.

Joshua Jones, a carpenter with the employer, testified that Jake Mongold discussed various methods of dropping the fifteen-foot beam, and decided to get it to the corner of a wall and then drop it in the basement so they would pick it up and set it.  Mr. Jones testified that Jake ensured that Eduardo would translate the procedure for everyone.  Mr. Jones was assigned to drop the beam.  He saw the claimant and three or four other workers standing about five or six feet away in a cubbyhole of the house.  Mr. Jones counted to three in a loud voice to make sure everyone heard and focused his attention on the task at hand.  By the time Mr. Jones heard Mr. Day yell, “watch it,” it was too late to stop the beam from dropping.  Mr. Jones had never dropped a beam before.

To successfully raise a defense of willful misconduct, the employer must establish (1) that the safety rule [or other duty] was reasonable, (2) that the rule was known to [the employee], (3) that the rule was for [the employee's] benefit, and (4) that [the employee] intentionally undertook the forbidden act. Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989).  Upon consideration of the evidence in the case at bar and the applicable law, we conclude that the Deputy Commissioner did not err in finding that the employer failed to prove misconduct.

The employees were working in an icy basement, attempting to drop a fifteen-foot, five hundred-pound steel beam.  The testimony of the witnesses establishes that the employees had no experience with this particular procedure.  The only “rule” posited in this case is that the employees were told to “move away” from the beam.   The evidence shows that the claimant heeded this warning and moved to the wall next to Mr. Prieto.  The count was not translated into Spanish, and it is not clear exactly what happened to place the claimant in a position of being hit by the beam.  Mr. Prieto did not see what happened, Mr. Day’s testimony is contradictory, and Mr. Jones was paying attention to his task of dropping the beam.  The claimant testified several times that he slipped.  All the witnesses agreed that the basement was icy.  Under these circumstances, we cannot find that the claimant intentionally violated a rule.  We find his accident compensable and AFFIRM this finding.

Turning to the issue of disability, the employer argues on Review that the Deputy Commissioner erred in relying on the evidence provided by the claimant’s chiropractor, Dr. Kevin Reiman.  We disagree.

The medical record reveals that the claimant was initially treated at Inova Fairfax Hospital for multiple injuries including fractures of the transverse processes of the lumbar vertebrae.   The claimant was seen at the hospital by Dr. Aldo M. Rosemblat, a neurosurgeon, who determined that the claimant did not need surgery.

Following his discharge from the hospital, the claimant returned to Dr. Rosemblat on January 16, 2003, complaining of severe low back pain.  Dr. Rosemblat prescribed physical therapy and medication and ordered an MRI.  He opined that the claimant was totally disabled and that his injuries would take 90 to 120 days to heal and allow a return to work.   Dr. Rosemblat completed a form indicating that the anticipated date of return to work was April 7, 2003.

The claimant was instructed to return to Dr. Rosemblat on February 6, 2003.  However, the claimant did not return to Dr. Rosemblat and instead began extensive therapy under the care of Dr. Reiman beginning March 17, 2003.  Dr. Reiman has issued work status notes excusing the claimant from work through July 7, 2003, which is beyond the date of the hearing.

We also have a report from Dr. Leo B. Van Herpe, an orthopedist, issued on June 18, 2003.  Dr. Van Herpe examined the claimant and reviewed his medical records at the request of the employer.  Dr. Van Herpe reported that the claimant sustained a small laceration of the liver and fractures of the transverse processes of L2, L3, and L4, as a result of the accident.  He took x-rays which showed that the fractures have healed.  Dr. Van Herpe opined that there is no reason that he cannot return to work without restrictions and that the claimant’s complaints are out of proportion to his injuries.  Dr. Van Herpe also noted that the claimant was voicing some abdominal complaints, and he recommended further work-up to determine if the liver injury was the cause.  He did not believe that the abdominal problem was disabling.

Based on the evidence presented, we agree the claimant has proven an ongoing disability.  It is well established that the Commission generally defers to the opinion of the treating physician over the contrary opinion of a non-treating independent medical examiner hired by the employer for a single examination.  Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986); Gourzis v. Mitre Corporation, VWC File No. 161-27-08 (April 18, 1996).

The Opinion below is AFFIRMED.

Interest is payable on the Award pursuant to Code 65.2-707.  The attorney’s fee awarded in the July 31, 2003, Opinion is increased to a total fee of $1,500.00, which shall be paid directly to counsel for the claimant out of accrued compensation.

This matter is hereby removed from the Review docket.

APPEAL

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

VIRGINIA:          04/27/2005

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.

VIRGINIA:        05/06/2005

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

VIRGINIA:            02/28/2007

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

VIRGINIA:            02/08/2008

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.

VIRGINIA:          03/02/2004

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.