COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
METRO MACHINE CORPORATION AND
LEGION INSURANCE COMPANY
OPINION BY
v. Record No. 0055-00-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
AUGUST 15, 2000
ALVIN WARD SOWERS, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
F. Nash Bilisoly (Kelly O. Stokes;
Vandeventer Black, LLP, on briefs),
for appellants.
Robert E. Walsh (Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellee.
Metro Machine Corporation ("employer") contends the
Workers' Compensation Commission ("commission") erred in
awarding medical and temporary total disability benefits to
Alvin Ward Sowers, Jr. ("claimant"). On appeal, we hold that
credible evidence supports the commission's findings that (1)
claimant properly filed a claim and established his disability
prior to the expiration of the statute of limitations; (2)
claimant had not returned to his pre-injury employment; (3)
claimant sufficiently marketed his residual work capacity; and
(4) claimant was entitled to benefits even if economic factors
caused his work layoff. Accordingly, we affirm.
I. FACTS
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "'Decisions of the
commission as to questions of fact, if supported by credible
evidence, are conclusive and binding on this Court.'" WLR Foods
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)
(quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991)).
Claimant has been employed as a maintenance mechanic with
employer since 1988. On March 24, 1993, claimant suffered a
compensable left knee injury. The injury was accepted, and
claimant received benefits under the Longshoremen & Harbor
Workers' Compensation Act (Longshore Act).
Claimant returned to work with employer on January 24, 1994
in a permanent, light duty capacity. Dr. Robert Neff,
claimant's treating physician, assigned a 15% permanent partial
disability rating and gave the following restrictions:
[Claimant] will need to be on permanent
light duty, as of January 24, 1994, and will
not be able to return to his full active
duty, which he was on prior to the injury.
The light duty should involve no more than
four hours total of standing or walking per
day. He should perform minimal squatting
and crawling.
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Claimant filed a claim for benefits with the commission on
March 6, 1995, but did not request a hearing at that time. He
continued to work with employer until March 28, 1997, when the
majority of the company's work force was laid off solely for
economic reasons. Claimant sought and received unemployment
benefits. Claimant refused to work with the employer's
vocational rehabilitation provider because he was already
working with an employment counselor through the Virginia
Employment Commission. On July 12, 1997, claimant started his
own handyman business and maintained ledger records for his
income and expenses. In November 1997, employer recalled all
employees who had been laid off, including claimant.
Claimant's attorney filed a request for hearing with the
commission and a claim for temporary total disability benefits
from March 28, 1997 through July 11, 1997 and temporary partial
disability benefits from July 12, 1997 through November 20,
1997. At the hearing, the deputy commissioner found: (1) that
the initial claim was timely filed and, therefore, the statute
of limitations did not apply; (2) that claimant had permanent
restrictions at the time of the layoff and adequately marketed
his remaining skills until his return to employment as a
handyman in July 1997; and (3) that claimant was entitled to
temporary partial and temporary total disability compensation
and an award of medical benefits.
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Employer sought review by the full commission, which
remanded the case for a further determination on the statute of
limitations issue. The full commission affirmed the deputy
commissioner's findings of a return to selective employment,
adequate marketing and cooperation with vocational
rehabilitation.
On remand, the deputy commissioner found that claimant's
claim was not barred by the statute of limitations because "the
claim was filed within two years of the date of the accident."
Additionally, the deputy commissioner found:
[t]he claimant has further established a
basis upon which compensation may be awarded
within two years of the date of the
accident. He sustained a period of
temporary total disability in January 1994
immediately following surgery and was
further found to have permanent partial
disability as of June 1994.
Employer appealed to the full commission the deputy
commissioner's finding on the statute of limitations. In its
December 16, 1999 opinion, the full commission found: (1) that
claimant suffered a compensable industrial accident on May 24,
1993, in which he injured his left knee; (2) that the claim for
benefits was not barred by the statute of limitations because it
was filed within two years of the date of accident; (3) that
claimant was on light duty status when he was laid off by
employer for economic reasons; and (4) that during the layoff,
claimant adequately marketed his remaining capacity.
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I. STATUTE OF LIMITATIONS
First, employer argues that claimant is barred from
coverage because he failed to request a hearing before the
commission to establish disability within two years from the
date of injury. We agree with the commission's finding that the
disability "both occurred and was documented . . . within two
years from the date of the accident." Pursuant to Code
§ 65.2-601, "[t]he right to compensation . . . shall be forever
barred unless a claim be filed with the Commission within two
years after the accident." Thus, we have consistently held that
any disability related to the workers' compensation injury must
have occurred and been documented during that two-year period.
See WLR Foods, 26 Va. App. at 229, 494 S.E.2d at 151; Lynchburg
Foundry Co. v. McDaniel, 22 Va. App. 307, 310, 469 S.E.2d 85, 87
(1996); Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 20, 441
S.E.2d 349, 350 (1994).
In the present case, the parties stipulated that claimant
sustained an injury to his left knee on March 24, 1993, arising
out of and in the course of his employment, and on March 6, 1995
filed a claim with the commission as required by Code
§ 65.2-601. The medical evidence established total disability
as of January 1994, when claimant had surgery. Claimant's
treating physician, Dr. Neff, released claimant to permanent,
light duty employment on January 24, 1994. Dr. Neff's February
15, 1995 report stated that claimant had reached maximum medical
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improvement and in June 1994, Dr. Neff gave claimant a 15%
permanent partial disability rating. Employer did not object to
these medical reports and failed to provide any additional
medical evidence to rebut the reports of Dr. Neff. Indeed, at
the hearing before the deputy commissioner, employer stated, "we
do not disagree that he [the claimant] was disabled . . . ."
The intent and purpose of Code § 65.2-601 is to require
notice to the employer of its potential liability for an injury
sustained by an employee. See Hungerford Mechanical Corp v.
Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 215 (1991).
Formal pleadings are not required. See Reese v. Wampler Foods,
Inc., 222 Va. 249, 255, 278 S.E.2d 870, 873 (1981). So long as
the claimant's notice advises the commission of necessary
elements of this claim, "'it activates the right of the employee
to compensation and . . . invokes the jurisdiction of the
Industrial Commission.'" Trammel Crow Co. v. Redmond, 12 Va.
App. 610, 614, 405 S.E.2d 632, 634 (1991) (attorney's letter to
commission, which contains required information, satisfied
filing requirement) (quoting Shawley v. Shea-Ball Constr. Co.,
216 Va. 442, 446 219 S.E.2d 849, 852 (1975)). Applying these
principles to the instant case, we conclude that a claim for
benefits, standing alone, fulfills the purpose of Code
§ 65.2-601. The supporting medical documentation and the
request for a hearing may be filed at a later date.
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Although disability must have occurred prior to the
expiration of the statute of limitations, it need not be
established until the request for hearing is filed and the
matter is brought before the commission. Here, the unrebutted
medical evidence and employer's statement conceding disability
before the deputy commissioner established that claimant's
disability occurred prior to the expiration of the statute of
limitations. Because credible evidence supports this finding,
we affirm.
Employer also contends that claimant was not entitled to
benefits because his request for a hearing before the deputy
commissioner was not filed within two years from the date of his
accident. Relying on Mayberry, 18 Va. App. 18, 441 S.E.2d 349,
employer argues that, in addition to the disability occurring
within two years of the accident, the actual proof before the
commission must be presented within two years. Because claimant
did not file a request for hearing within two years and the
matter was not raised before the deputy commissioner until
approximately four years after the accident, employer argues the
claim is time barred. We disagree.
Employer's reliance on Mayberry is misplaced. The issue in
that case was whether the claimant had an "awardable work
incapacity within two years from the date of his accident." Id.
at 19, 441 S.E.2d at 349. Mayberry did not miss any time from
work until two years and two months after the date of his
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accident, and his initial disability occurred a full two months
after the statute of limitations had expired.
We concluded in Mayberry that the claim was barred by the
statute of limitations "[b]ecause Mayberry did not file a timely
application or demonstrate any disability during the two year
period . . . ." Id. at 20, 441 S.E.2d at 350. Contrary to
employer's contention, Mayberry does not require that the
request for hearing or the actual proof of disability occur
within two years of the accident. See also Metro Machine Corp.
v. Lamb, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (2000) ("The
fact that the employee did not seek a hearing within . . . two
years of the accident does not bar his claim."); cf. Southwest
Virginia Tire, Inc. v. Bryant, 31 Va. App. 655, 661, 525 S.E.2d
563, 566 (2000) (noting that in a change in condition
application, the employee is not required to produce evidence
prior to the expiration of two years).
In the instant case, claimant was disabled from employment
shortly after his accident and was paid benefits under the
Longshoremen Act for temporary total disability during that
time. Well within the two-year period, claimant was disabled
from work due to surgery and he received a permanent partial
disability rating. As we recognized in Hobson,
a medical rating of the employee's
disability is evidence which an employee
offers in order to meet the burden of proof.
The Code does not require that this evidence
be established before the statute of
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limitations expires. The timely filing of
evidence in accordance with the commission's
rules and the facts established by that
evidence are the operative considerations in
determining whether a claimant is entitled
to compensation benefits.
Hobson, 11 Va. App. at 677-78, 401 S.E.2d at 215. There is a
clear difference between the filing of a claim for benefits and
the request for a hearing. 1 They are not the same issue and do
not always occur simultaneously. A claimant may, at any time,
withdraw his request for hearing and not affect his or her claim
for benefits, so long as they were filed separately. See Keenan
v. Westinghouse Elevator Co., 10 Va. App. 232, 391 S.E.2d 342
(1990).
Accordingly, the claim filed by the claimant is not barred
by the statute of limitations and the failure to request a
hearing within two years from the date of accident does not bar
his claim for benefits.
III. RETURN TO PRE-INJURY EMPLOYMENT
Next, employer contends that claimant is not entitled to
temporary partial or temporary total benefits during the layoff
because he was performing his regular duty job. We disagree.
The medical documentation provided by claimant and unrebutted by
1
If the claim for benefits and request for hearing are
filed in one document and the request for hearing is dismissed
or withdrawn, so is the claim for benefits. If the two are
filed separately, dismissing or withdrawing the request for
hearing has no effect on the claim for benefits and it remains
filed with the commission. See Keenan v. Westinghouse Elevator
Co., 10 Va. App. 232, 235, 391 S.E.2d 342, 344 (1990).
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employer shows that claimant had permanent restrictions on his
physical abilities. Claimant returned to work with employer on
January 24, 1994 in a permanent, light duty capacity. He
received a 15% permanent partial disability rating, and in his
report of January 19, 1994, Dr. Neff, claimant's treating
physician, stated:
He will need to be on permanent light
duty, as of January 24, 1994, and will not
be able to return to his full active duty,
which he was on prior to the injury. The
light duty should involve no more than four
hours total of standing or walking per day.
He should perform minimal squatting and
crawling.
Claimant testified that he had limitations and that
employer accommodated those limitations. Employer also
presented testimony that they were aware of the restrictions
placed upon claimant by his treating physician, including the
following
Q. But it was made clear essentially that
he [claimant] was to stay within these
restrictions, that he had these
permanent restrictions, he didn't have
these before and he was to work within
them?
A. That's correct.
Q. And he was to be accommodated in staying
within these restrictions?
A. Correct.
Based on the medical evidence in the record, the claimant's
testimony, and the employer's admissions, credible evidence
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supports the commission's finding that claimant was not working
his regular duty job at the time of the economic layoff.
IV. MARKETING
Employer also argues that claimant failed to adequately
market his residual capacity because he did not cooperate with
employer's vocational rehabilitation. Claimant's testimony and
the forms and records showing his attempts to find work during
the economic layoff belie this contention. Code
§ 65.2-603(A)(3) provides that "employer shall furnish or cause
to be furnished . . . reasonable and necessary vocational
rehabilitation." Code § 65.2-603(B) further provides that "the
unjustified refusal of the employee to accept such . . .
vocational rehabilitation services . . . shall bar the employee
from further compensation . . . ." Thus, a claimant is not
required to cooperate with the employer's vocational
rehabilitation provider if said claimant's refusal to cooperate
is justified. Claimant provided sufficient records, logs and
testimony to support his refusal of employer's vocational
rehabilitation because he was actively participating with the
Virginia Employment Commission's vocational rehabilitation and
seeking appropriate employment.
V. ECOMONIC LAYOFF
Lastly, employer argues that because the layoff was plant
wide and economic in nature, claimant was not entitled to
disability benefits because his lack of work was unrelated to
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his injury. We disagree. Code § 65.2-500 2 states that benefits
are payable "as long as the incapacity for work is a result of
the injury." The medical evidence and claimant's testimony,
both uncontested, support the finding that claimant's disability
resulted from his knee injury. He lost time from work initially
for his surgery and recovery. When he returned to work, his
physician issued permanent restrictions on his physical
activities. During the economic layoff from employer, claimant
was unable to market himself as he would have been in the
absence of permanent physical restrictions. It is contrary to
the purpose of the Workers' Compensation Act to refuse benefits
to a permanently injured worker during an economic layoff. We
have addressed the purpose of the Workers' Compensation Act most
recently in 1998, noting that
the purpose of the Workers' Compensation Act
is to provide compensation to an employee
for the loss of his opportunity to engage in
work, when his disability is occasioned by
an injury suffered from an accident arising
out of and in the course of his employment.
The Act should be liberally construed in
harmony with its humane purpose.
U.S. Air, Inc. v. Joyce, 27 Va. App. 184, 189, 497 S.E.2d 904,
906 (1998) (citing Barnett v. Bromwell, 6 Va. App. 30, 33-34,
366 S.E.2d 271, 272 (1941)). Here, the economic layoff placed
2
Code § 65.2-500(A) states, "[w]hen the incapacity for work
resulting from the injury is total, the employer shall pay, or
cause to be paid, as hereinafter provided, to the injured
employee during such total incapacity, a weekly compensation
equal to 66 2/3 percent of his average weekly wages . . . ."
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claimant in a different position from the other, uninjured,
employees. Claimant's "opportunity to engage in work" was
limited by his permanent physical restrictions due to his
compensable injury. Thus, he did not have the same opportunity
or ability as other employees to find other employment.
Additionally, "the employer's financial condition and the
availability of alternative work do not affect the claimant's
right to compensation due to an impaired capacity to perform his
pre-injury duties." Consolidated Stores Corp. v. Graham, 25 Va.
App. 133, 137, 486 S.E.2d 576, 578 (1997). 3
The decision in Washington Metro. Area Transit Auth. v.
Harrison, 228 Va. 598, 324 S.E.2d 654 (1985), is instructive.
In Harrison, claimant had accepted employer's offer of selective
employment upon his release to light duty and remained partially
disabled at the time of the layoff. He offered no evidence he
3
The commission has also addressed the issue of a partially
disabled worker laid off for economic reasons in Pleasants v.
AT&T Microelectronics, 68 VWC 169 (1989). The commission held
that
had claimant recovered to the point that she
could return to her regular work prior to
the economic lay-off on April 15, 1988,
there would be no basis for the resumption
of compensation. However, the employer had
a continuing obligation to provide light
work to the claimant as long as her
restrictions continued or, in the
alternative, to resume payment of
compensation for wage loss.
Id. at 171; see also Nixon v. Stafford Elect. & Refrigeration
Serv., Inc., 71 VWC 87 (1992).
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marketed his remaining capacity. The Supreme Court reversed and
remanded for the parties to present additional evidence of
marketing. In so doing, the Supreme Court held that to
establish entitlement to temporary total disability benefits
following an economic layoff the claimant has the burden to
prove that he made a reasonable effort to procure suitable work
but was unable to market his remaining work capacity. See id.
at 600-02, 324 S.E.2d at 655-56. Credible evidence supports the
commission's finding that claimant adequately marketed his
residual capacity.
For the foregoing reasons, we affirm.
Affirmed.
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