COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
WLR FOODS, INC. and
PACIFIC EMPLOYERS INSURANCE COMPANY
OPINION BY
v. Record No. 0536-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 23, 1997
VILLABALDO CARDOSA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Cathleen P. Welsh (Wharton, Aldhizer &
Weaver, P.L.C., on brief), for appellants.
No brief or argument for appellee.
WLR Foods, Inc. and Pacific Employers Insurance Company
(collectively employer) appeal the Workers' Compensation
Commission's decision awarding benefits to Villabaldo Cardosa
(claimant). Employer argues the commission erred in: (1)
awarding benefits beyond the scope of claimant's request; (2)
awarding benefits for a time-barred claim; and (3) finding that
claimant's disability was causally related to his compensable
injury. For the following reasons, we reverse the commission's
decision.
I.
Villabaldo Cardosa is a fifty-three-year-old illiterate
Mexican man who has worked in this country for at least eight
years. He began processing chickens for employer on January 16,
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
1994. His job involved taking frozen chickens out of a box which
contained twenty to twenty-five chickens, and placing the
chickens on a cone. On April 15, 1994, as claimant was removing
chickens from a box, the side of the box collapsed and he fell
forward. Claimant broke his fall with his right arm and injured
his right shoulder. After his injury, claimant worked for
employer in a light duty position for an undetermined time before
returning to regular duty. He last worked for employer November
30, 1994.
The evidence established that, on June 3, 1994, claimant saw
Dr. G. Edward Chappell, Jr., an orthopedic surgeon. Dr. Chappell
recorded that claimant had no prior problems with his shoulder
but had experienced pain since the accident. He recommended
occupational therapy, prescribed medication, and restricted all
use of claimant's right arm at work. Dr. Chappell indicated that
"part of his problem" is adhesive capsulitis, or "frozen
shoulder." Dr. Chappell characterized adhesive capsulitis as "a
disease of ordinary life unrelated to [claimant's] April, 1994
injury." On October 7, Dr. Chappell noted no change in
claimant's symptoms but more range of motion. Dr. Chappell
lifted the work restrictions. On November 7, Dr. Chappell noted
continuing symptoms but stated he did not think surgery would
help the adhesive capsulitis. Claimant did not return to Dr.
Chappell. Nonetheless, on December 30, 1994, Dr. Chappell
imposed a lifting restriction of a maximum of five pounds with no
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overhead use.
Without a referral from Dr. Chappell, claimant next sought
medical treatment on May 23, 1995 from Dr. Robert Keeton, who
declared claimant disabled "due to continuing shoulder problems."
Dr. Keeton referred claimant to Dr. Creston Baumunk, another
orthopedist. On July 5, Dr. Baumunk diagnosed claimant's
condition as frozen shoulder probably secondary to impingement
syndrome. On July 26, however, Dr. Baumunk indicated that the
impingement syndrome was secondary to the frozen shoulder. On
August 23, Dr. Baumunk observed that the long-term result of
claimant's physical therapy "has been that he has regained some
motion in the shoulder and this has been somewhat gratifying. At
this point in time he continues, however, to have
impingement-type syndrome." Dr. Baumunk offered three diagnoses:
(1) right frozen shoulder, resolving slowly; (2) impingement
syndrome, right shoulder; and (3) degenerative arthritis, right
AC joint.
Through September and October 1995, claimant had several
visits with Dr. Baumunk or his associate, Dr. Davis. After an
office visit on November 1, Dr. Baumunk summarized the history:
Mr. Cardoso [sic] returned today, this time
with an English interpreter. He claims that
he fell on his shoulder at work and had no
problem prior to . . . this, and at that time
he began to experience pain in the right
shoulder area. He has been seen here for
several months, [and] undergone four
injections into the AC joint. He has had an
arthrogram which shows no rotator cuff tear,
and also has had subacromial injections. He
has had physical therapy. He has also had
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multiple anti-inflammatories. He still has
chronic pain and is unable to abduct above 90
degrees without marked pain in the shoulder
area.
Dr. Baumunk concluded that, based on a diagnosis of "impingement
syndrome with degenerative AC joint," and the failure of
conservative therapy, surgery was recommended. Dr. Baumunk
performed the surgery on November 9, 1995.
Claimant's condition improved after surgery, and by January
22, 1996, he had almost full range of motion of his shoulder. On
March 18, Dr. Baumunk noted an improved range of motion despite
some neck spasm, and he imposed a permanent restriction against
overhead work. Dr. Baumunk anticipated a release at the next
visit.
On June 3, 1996, without a referral, claimant saw Dr.
Charles Hubbard, an orthopedist. Dr. Hubbard diagnosed a partial
thickness tear of the rotator cuff and AC joint degeneration, and
he assigned a 19% impairment of the upper right extremity with
work restrictions of no lifting over ten pounds and no overhead
work. He stated, in response to claimant's counsel's questions,
that, "[a]ccording to the records, the present disability is due
to his 4/1/94 [sic] injury." Dr. Hubbard clarified, in response
to employer's counsel, that he did not have access to Dr.
Chappell's records and that arthritis of the AC joint and a
subacromial bone spur contributed to claimant's impingement
syndrome.
Claimant first filed a claim for benefits on March 3, 1995.
4
At an August 23, 1995 hearing, Deputy Commissioner Herring found
that claimant had sustained a compensable injury by accident and
that employer would "be responsible for medical care and
treatment proximately related to the right shoulder contusion."
However, based on Dr. Chappell's statements, the deputy
commissioner also found that the employer's responsibility "shall
not include any treatment for adhesive capsulitis." This opinion
was not appealed and became final.
On February 14, 1996, claimant, by counsel, filed a
change-in-condition application for benefits beginning February
1, 1996. Claimant never amended the application, either in
writing or at the hearing, to expand the dates for coverage. At
the June 5, 1996 hearing, claimant testified through an
interpreter about his pre-injury and post-injury work. Claimant
also described his efforts to market his remaining work capacity,
which included applying for a job with employer on February 1,
visiting an unspecified number of jobs in February, and inquiring
at four or five plants between February and June.
Deputy Commissioner Mercer denied claimant's
change-in-condition application, finding that claimant "does not
suffer from a rotator cuff tear, and . . . that the diagnosis of
frozen shoulder is not related to the accident." He also found
that claimant failed to prove disability from his pre-injury
work, reasonable efforts to market his residual work capacity,
and a causal relationship between his disability and his
5
compensable injury. Claimant appealed to the full commission.
The commission reversed and awarded claimant temporary total
disability benefits for the period October 25, 1995 through
December 13, 1995, and from June 3, 1996 until circumstances
require a modification. The commission found that Deputy
Commissioner Herring's unappealed decision was res judicata, and
employer was not responsible for treatment of claimant's adhesive
capsulitis (frozen shoulder). However, "the record clearly
reflects that the claimant suffers from more than one condition.
In addition to adhesive capsulitis, the claimant has also been
diagnosed with impingement syndrome caused by the fall at work."
Although "the frozen shoulder resolved over time, the
impingement syndrome worsened, necessitating surgery on November
9, 1995." The commission found that the two conditions are
separate diagnoses and that "[t]reatment of and disability caused
by the impingement syndrome are not barred by res judicata."
The commission found that Dr. Baumunk assessed claimant as
totally disabled from October 25 to December 13, 1995, a time
period predating that requested by claimant or addressed at the
hearing. The commission further found that, "[b]ased on the
uncontradicted opinion of Dr. Hubbard . . . the claimant was
partially disabled and unable to perform his regular job as of
June 3, 1996." The commission evaluated claimant's efforts to
market his residual capacity and concluded that "for a
non-English-speaking, illiterate manual laborer, age 53, with a
6
ten pound lifting restriction, and no rehabilitation assistance
from the employer who has continually denied this claim, the
marketing is reasonable."
7
II.
Employer first argues that the commission erred in awarding
claimant benefits for October 25 to December 13, 1995, because
claimant requested wage benefits only for the time period
beginning February 1, 1996. Employer contends that the
commission is not empowered to award benefits for time periods
not requested in the application for a hearing or at the hearing
itself and which the employer does not know it will be required
to defend. We agree.
"Due process is flexible and calls for such procedural
protections as the particular situation demands." Duncan v. ABF
Freight System, Inc., 20 Va. App. 418, 422, 457 S.E.2d 424, 426
(1995) (citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).
It is well settled that
[a]n elementary and fundamental requirement
of due process in any proceeding which is to
be accorded finality is notice reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency of
the action and afford them an opportunity to
present their objections.
Crystal City Oil Co. v. Dotson, 12 Va. App. 1014, 1018, 408
S.E.2d 252, 254 (1991) (citing Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)) (other citations omitted).
"Pleading requirements in administrative proceedings before [the
commission] are traditionally more informal than judicial
proceedings." Sergio's Pizza v. Soncini, 1 Va. App. 370, 376,
339 S.E.2d 204, 207 (1986). However, the commission must use
8
procedures that "afford the parties minimal due process
safeguards." Id.
Where the commission modifies a claim at the hearing or
review stage without advising the employer in advance, "the
dispositive issue . . . is whether the employer was prejudiced"
by the lack of notice. Crystal City Oil Co., 12 Va. App. at
1018, 408 S.E.2d at 253-54 (amendment adding claim at
change-in-condition hearing did not prejudice employer because
"employer had sufficient notice reasonably calculated under the
circumstances to advise it of the pending claim"). See Oak Hill
Nursing Home, Inc. v. Back, 221 Va. 411, 270 S.E.2d 723 (1980)
(consolidation with the original claim at the hearing stage gave
the employer sufficient notice for the claim to be treated as a
change of condition rather than an original application);
Sergio's Pizza v. Soncini, 1 Va. App. 370, 339 S.E.2d 204 (1986)
(procedure for treating benefits claim as change-in-condition
claim at review stage did not provide employer a reasonable
opportunity to present evidence or defend).
In the instant case, the commission essentially modified
claimant's change-in-condition application at the decision stage,
after both the hearing and the review proceedings were
1
concluded. Claimant's application requested benefits beginning
1
The commission acknowledges that "[t]he claimant in this
case is seeking temporary total disability benefits commencing
February 1, 1996, and continuing." However, the opinion does not
indicate whether the award of temporary total benefits for a time
period before February 1, 1996 was deliberate or inadvertent.
Either way, the analysis is the same.
9
February 1, 1996, and the application was never amended to
encompass any greater time period. In his pleadings and at the
hearing, claimant acknowledged that he was seeking benefits
beginning February 1, 1996. The transcript of the hearing
reflects a focus on claimant's condition and efforts to market
his residual work capacity after February 1, 1996. Employer had
no notice of a potential award of wage benefits concerning any
earlier time period until the commission rendered its decision on
January 31, 1997.
The commission's procedure "precluded an adequate
opportunity to defend [against an award for this time period]
since it was litigated only as [a claim for benefits beginning
February 1, 1996]." Sergio's Pizza, 1 Va. App. at 376, 339
S.E.2d at 208. Although employer collected and presented medical
evidence to support its causation defense, the evidence is
ambiguous regarding claimant's degree and duration of disability
from October through December 1995. Had employer been on notice
that it would be required to defend against a claim for wage
benefits during this time, it could have addressed this period in
detail and obtained additional information. The commission's sua
sponte award of unrequested benefits denied employer this
opportunity and "fails to comport with due process notions of
fair play and substantial justice." Id. at 377, 339 S.E.2d at
208. Therefore, the commission's award of temporary total
disability benefits for the period from October 25 to December
10
13, 1995 is reversed. 2
III.
Employer next contends the commission's award of temporary
total disability benefits beginning June 3, 1996 is barred by the
statute of limitations. A claim for compensation must be filed
with the commission within two years after the accident or the
claim shall be forever barred. See Code § 65.2-601. A claimant
who receives medical benefits but who fails to demonstrate
disability during the two-year period may not be awarded total
disability benefits. See Mayberry v. Alcoa Bldg. Prods., 18 Va.
App. 18, 441 S.E.2d 349 (1994).
In the instant case, claimant's shoulder injury occurred on
April 15, 1994, and he was not restricted from his pre-injury
work until he saw Dr. Hubbard on June 3, 1996, more than
twenty-four months later. We agree with Deputy Commissioner
Mercer, who noted that "[a]ny claim for wage loss benefits first
beginning in June 1996, when the lifting restriction was imposed
by Dr. Hubbard, would also be jurisdictionally barred."
Consequently, we reverse the commission's award of wage benefits
beginning June 3, 1996.
2
Employer also claims that the commission's award of
benefits during this time period violates its own rule
prohibiting awards of additional compensation more than ninety
days before the filing of a change-in-condition application. See
Rule 1.2(B). Because we reverse the award on alternative
grounds, this argument is moot.
11
IV.
Lastly, employer argues the commission erred in finding that
claimant's condition and disability were causally related to his
compensable injury. Viewed in the light most favorable to the
claimant, who prevailed before the commission, see Fairfax County
v. Espinola, 11 Va. App. 126, 129, 396 S.E.2d 856, 858 (1990),
the record reflects conflicting medical testimony from Dr.
Chappell, Dr. Baumunk and Dr. Hubbard regarding the relationship
between claimant's shoulder condition and his injury. Dr.
Chappell concluded that "part of" claimant's shoulder problem was
"adhesive capsulitis," (frozen shoulder), which is "a disease of
ordinary life." Dr. Baumunk attributed claimant's "continuing
shoulder problems" to both frozen shoulder and a second
condition, "impingement syndrome." Dr. Hubbard opined that
claimant's "present disability is due to his . . . injury."
"A question raised by conflicting medical opinion is a
question of fact." Department of Corrections v. Powell, 2 Va.
App. 712, 714, 347 S.E.2d 532, 533 (1986). "Decisions of the
commission as to questions of fact, if supported by credible
evidence, are conclusive and binding on this Court." Manassas
Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824,
826 (1991). "The fact that there is contrary evidence in the
record is of no consequence." Wagner Enters., Inc. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted).
Credible evidence supports the commission's finding that although
12
employer is not responsible for claimant's frozen shoulder,
"claimant suffers from more than one condition," and "[t]reatment
of and disability caused by the impingement syndrome are not
barred by res judicata." Dr. Baumunk's evidence supports the
conclusion that "claimant's impingement syndrome was caused by
his fall at work." Consequently, we affirm the commission's
determination that a causal relationship exists between
claimant's shoulder condition and his April 15, 1994 injury. 3
V.
While claimant's award of wage benefits must be reversed as
time-barred, his eligibility for medical benefits is still
unresolved.
Whether the employer is responsible for
medical expenses . . . depends upon: (1)
whether the medical service was causally
related to the industrial injury; (2) whether
such other medical attention was necessary;
and (3) whether the treating physician made a
referral.
Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d
903, 906 (1985). Employer defended claimant's request for
medical benefits on the grounds that claimant had failed to
establish causation and that claimant's treatment was
unauthorized. We affirmed the commission's finding on causation,
but the parties agreed at the June 5, 1996 hearing to reserve the
issue of whether his treatment was properly authorized.
3
Our resolution of the first two issues renders unnecessary
a consideration of whether claimant reasonably marketed his
residual work capacity.
13
Consequently, we remand for proceedings to determine whether
employer is responsible for medical benefits.
Reversed and remanded.
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