COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Huff and Senior Judge Coleman
Argued at Salem, Virginia
WAL-MART AND INSURANCE COMPANY
OF THE STATE OF PENNSYLVANIA
OPINION BY
v. Record No. 2085-11-3 JUDGE ROSSIE D. ALSTON, JR.
APRIL 24, 2012
ASHLEY L. POORMAN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Monica Taylor Monday (E. Scott Austin; Gentry Locke Rakes &
Moore, on briefs), for appellants.
Karel Brown Ryan (Ryan Law Firm, on brief), for appellee.
Wal-Mart (“employer”) appeals the Workers’ Compensation Commission’s (the
“commission”) decision to deny Wal-Mart’s application for hearing alleging that Ashley
Poorman (“claimant”) unjustifiably refused selective employment. Employer assigns two errors
to the commission’s decision. Employer contends first that the commission erred in finding that
employer had the burden of raising causation in its hearing application and in finding that the
issue of causation was not properly before it. Additionally, employer argues that the commission
erroneously and impermissibly shifted the burden of proof on the causation issue from claimant
to employer and erroneously required employer to prove that medical conditions that were not
the subject of an award were not caused by the accident. Because we find that the commission
did err in the first aspect that employer identifies, we reverse and remand for proceedings
consistent with this opinion.
I. BACKGROUND
On October 7, 2007, claimant sustained a left ankle sprain after she became tangled in
some shopping carts at work. As a result, she developed reflex sympathetic dystrophy (“RSD”),
also referred to as complex regional pain syndrome. Claimant was twenty-two years old at the
time of the injury. She treated first with Dr. Phillip Peterson, a family doctor, who referred her
to Dr. Walid Azzo, an orthopedist. Dr. Azzo referred her to the University of Virginia Medical
Center (“UVA”). Claimant then began treating with the pain management department at UVA,
seeing multiple specialists, including Dr. Kevin Vorenkamp, an anesthesiologist. In January
2008, employer accepted the RSD injury as compensable pursuant to an agreement to pay
benefits, and the commission entered an award a month later approving the agreement.
In October 2008, Dr. Peterson saw claimant for follow up on her RSD and noted that she
was having seizure problems. Dr. Peterson referred her to a neurologist for the seizure disorder.
Two months later, Dr. Peterson saw claimant again and noted that she reported new pain in her
left wrist. In November 2009, Dr. Peterson saw claimant and noted that she was suffering from
RSD, anxiety with some depression, and chronic dyspepsia. He also stated, “Extremities are left
to the [follow up] of her specialists.”
Also during this time, claimant saw Dr. Vorenkamp for sympathetic nerve block
treatment for the RSD. On October 8, 2010, Dr. Vorenkamp signed employer’s “Return to Work
Activity Prescription” stating that claimant could return to work with the following restrictions:
maximum lifting at 20 lbs., alternate sitting/standing, no overhead reaching, no above the
shoulder work, no ladder work, and “[l]imit to 4 hours daily, max 5 days/week, rec [sic] off work
during flares and for 2 weeks after procedure.”
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On October 18, 2010, employer sent claimant a document entitled “Bona Fide Job Offer”
which noted that it had received the aforementioned release and statement of restrictions from
Dr. Vorenkamp. Employer’s offer to claimant included the following terms:
Work either in the fitting room or as a People Greeter;
Working from 8:00pm-midnight, five days per week;
Temporary Alternative Duty Position would be for 90 days;
Contact personnel manager by midnight on October 22, 2010 to
accept the offer.
On October 21, 2010, claimant’s counsel sent a letter to employer’s counsel stating that
the offer was not valid because Dr. Vorenkamp, as an anesthesiologist, was not qualified to give
an opinion about claimant’s ability to return to work. Additionally, claimant asserted that the
offer was not valid because her “treating physician and all other treating consults have opined
that she is totally disabled from employment as a result of this accident and injury.”
On December 3, 2010, employer filed an application for termination/suspension of
claimant’s benefits alleging that she had unjustifiably refused selective employment on October
22, 2010. Employer attached three documents in support of its application, the “Return To Work
Activity Prescription” signed by Dr. Vorenkamp, the “Bona Fide Job Offer,” and an affidavit by
employer’s personnel manager. After evaluation, the commission found probable cause for the
application and referred it to the hearing docket. In response, claimant filed an objection to
employer’s application, contending that Dr. Vorenkamp was not qualified to return her to work
because he is an anesthesiologist.
After these filings but before an evidentiary hearing, claimant saw Dr. Peterson again.
His office note indicated that UVA’s anesthesia group had released claimant to return to work,
but she was still suffering from “at least daily seizure-like episodes and uncontrolled anxiety for
which she is seeing a psychiatrist at Southern Highlands.”
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On April 18, 2011, the deputy commissioner held a hearing. At the hearing, claimant
agreed that she received an offer of selective employment and that she did not accept it. She
defended claiming that her refusal was justified, repeating her prior assertion that
Dr. Vorenkamp, who released her to light-duty work, was not qualified to do so because he is an
anesthesiologist. Claimant further alleged that she was totally disabled based upon the opinion
of other physicians including Dr. Azzo and Dr. Peterson. When asked directly why she did not
accept employer’s offer for other jobs, claimant stated: “Well, because I knew that I wouldn’t be
able to. I wouldn’t be able to as far as . . . like the way this whole RSD has affected me between
my foot pain and my ankle and my leg to being sick all the time, to my stress spells.” Claimant
then acknowledged that she had also provided this response to Dr. Vorenkamp before he signed
the document returning her to work with restrictions.
Following claimant’s testimony, the deputy commissioner sua sponte raised the issue of
whether employer’s application was properly before him because it did not allege causation. The
deputy commissioner informed employer’s counsel that employer had the burden of disproving
the causal relationship of any condition claimant may have had at the time of the hearing.
On May 5, 2011, the deputy commissioner issued a decision rejecting employer’s
application. In his decision, the deputy commissioner explicitly concluded that claimant had
health issues unrelated to the accident in question. Additionally, the deputy commissioner found
that employer offered claimant selective employment within the restrictions given by
Dr. Vorenkamp but she did not accept it. The deputy commissioner credited Dr. Vorenkamp’s
opinion on claimant’s functional capacity based on her work-related injury because he was
claimant’s treating pain management specialist. Moreover, the deputy commissioner concluded
that Dr. Azzo’s opinion was not sufficient to override Dr. Vorenkamp’s opinion because
Dr. Azzo advised the commission in January 2011 that he was no longer claimant’s treating
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physician. Despite these conclusions, the deputy commissioner found that employer’s
application failed because employer’s application did not raise the issue of causation as to
claimant’s seizures and anxiety issues, which Dr. Peterson maintained made claimant incapable
of working.
Employer timely applied for review before the commission, and a divided commission
affirmed the deputy commissioner’s opinion. The majority held that the issue of causation was
not properly before the commission because employer did not raise the issue of causation in its
hearing application. The dissenting commissioner found the instant matter indistinguishable
from, and controlled by, UPS, Inc. v. Ilg, 54 Va. App. 366, 679 S.E.2d 545 (2009). The
dissenting commissioner suggested that pursuant to Ilg the employer was not required to raise or
prove causation as to claimant’s other medical conditions that were not the subject of a current
award. Accordingly, the dissenting commissioner would have found that claimant’s refusal of
selective employment was unjustified.
II. ANALYSIS
Whether the commission erred in finding that employer had the burden of raising
causation in its hearing application and in finding that the issue of causation was not properly
before it are questions of law. Accordingly, we review them de novo. See Peacock v. Browning
Ferris, Inc., 38 Va. App. 241, 248, 563 S.E.2d 368, 372 (2002).
The Workers’ Compensation Act dictates specific procedures and considerations that
differ depending on whether a claimant has already received an award or is in the process of
obtaining one. Code §§ 65.2-700 through -704 govern the process by which a claimant may
obtain an award, while Code §§ 65.2-705 through -715 govern actions parties may take
subsequent to the establishment of an award. See Ilg, 54 Va. App. at 375-77, 679 S.E.2d at
549-50. Once the commission makes an award and it has become final, the parties must seek
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review of any disputes related to that award under Code § 65.2-708. Williams v. Virginia Elec.
& Power Co., 18 Va. App. 569, 575, 445 S.E.2d 693, 697 (1994) (citing Manchester Bd. & Paper
Co. v. Parker, 201 Va. 328, 330, 111 S.E.2d 453, 455 (1959)). Consequently, when the
commission reviews a requested change to an award under Code § 65.2-708, that review is
limited to the award currently in place, as opposed to evidence that might support establishing a
new award. See Ilg, 54 Va. App. at 375, 679 S.E.2d at 549 (citing Williams, 18 Va. App. at 575,
445 S.E.2d at 697).
When employer filed its application for suspension/termination based on claimant’s
alleged unjustified refusal of selective employment, it did so pursuant to Code § 65.2-708
(review of award on change in condition) and Code § 65.2-510 (refusal of employment;
compensation for partial incapacity). See Talley v. Goodwin Bros. Lumber Co., 224 Va. 48, 52,
294 S.E.2d 818, 820 (1982). When an employer initiates this type of application, the employer
first bears the burden of showing “that the position offered is within the employee’s residual
capacity.” Am. Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985) (citing
Klate Holt Co. v. Holt, 229 Va. 544, 545, 331 S.E.2d 446, 447 (1985)). The claimant’s “residual
capacity” in this context is the capacity resulting from the compensable accident. Id. Once the
employer has produced sufficient evidence to establish that it offered the claimant suitable
employment relating to the compensable claim at issue, the burden then shifts to the claimant to
demonstrate that she was justified in refusing that offer. Id. If the claimant raises a physical
condition that is not currently the subject of an award, she bears the burden of demonstrating a
causal connection between that physical condition and the compensable accident. See id. at
42-43, 334 S.E.2d at 550-51.
Here, claimant and employer submitted an agreement to pay benefits for claimant’s ankle
injury and related RSD, which the commission approved with an award order on February 14,
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2008. Pursuant to Code § 65.2-701, that award became binding and enforceable on that date.
Accordingly, the commission’s review is limited to the award currently in place – the approved
agreement for employer to pay benefits for claimant’s ankle injury and related RSD – along with
her alleged unjustified refusal of selective employment. See Williams, 18 Va. App. at 575, 445
S.E.2d at 697; see also Ilg, 54 Va. App. at 375, 679 S.E.2d at 549.
The process establishes that employer bore the initial burden to demonstrate that it
offered claimant a position suitable to her residual capacity based on her ankle injury and RSD,
alone. Doane, 230 Va. at 42, 334 S.E.2d at 550. However, contrary to the commission’s
affirmation of the deputy commissioner’s decision, employer did not bear the burden to raise
causation regarding claimant’s seizures and “stress spells.” Assuming without deciding that
employer met its burden, claimant then bore the burden of proving that her refusal was justified.
Id. If claimant’s refusal was based upon her seizures and “stress spells,” physical conditions that
were not the subject of a current award, then claimant bore the burden of demonstrating a causal
connection between those conditions and the compensable accident. See id. at 42-43, 334 S.E.2d
at 550-51. Because of the transposition of the evidentiary burden pertaining to proving such a
causal connection, we are unable to conclude from this record whether claimant was justified in
her refusal to accept employer’s offer.
Consequently, the commission erred in finding that employer’s application failed because
employer did not raise and disprove a causal connection between claimant’s workplace accident
and her seizures and stress spells. Accordingly, we reverse the commission’s determination that
the employer had the burden to raise causation and remand for reconsideration of employer’s
application.
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IV. CONCLUSION
For the foregoing reasons, we reverse and remand to the commission for proceedings
consistent with this decision.
Reversed and remanded.
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