COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
FORD MOTOR COMPANY
OPINION BY
v. Record No. 0821-97-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 23, 1997
LARRY I. HUNT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Barry Dorans (Samuel W. Meekins, Jr.;
Wolcott, Rivers, Wheary, Basnight & Kelly,
P.C., on briefs), for appellant.
Matthew H. Kraft (Betty M. Tharrington;
Rutter & Montagna, L.L.P., on brief), for
appellee.
Ford Motor Company appeals from the commission's award of
disability benefits to Larry I. Hunt. Ford argues that Hunt's
activity restrictions were unrelated to his compensable injury,
that the commission improperly applied the "two causes" rule, and
that Hunt failed to adequately market his residual work capacity.
We affirm the commission's award.
I.
Hunt suffered an injury to his right knee while working in a
Ford assembly plant. He was treated by Dr. Sheldon Cohn, who
placed Hunt on work restrictions, including no crawling,
squatting, or lifting over thirty pounds. When Ford accepted the
claim as compensable, the commission awarded Hunt benefits from
March 30, 1993 until May 16, 1993.
Hunt returned to work at Ford in a light duty capacity and
continued to experience pain in his knee for several months. In
October 1993, Dr. Cohn performed an "arthroscopic partial medial
meniscectomy and open lateral release of [Hunt's] right knee" and
reported that Hunt was unable to work. On February 25, 1994, Dr.
Cohn released Hunt for limited duty and noted that Hunt was "not
to squat, crawl, or climb." In March and April, Hunt
participated in a work-hardening program which also recommended
limits "on prolonged standing/walking." In a report dated
April 8, 1994, Dr. Cohn "released [Hunt] with permanent work
restrictions of limited squatting, climbing, crawling, and not to
stand over four hours at a time." Several weeks later, Hunt
returned to Dr. Cohn complaining of pain. Dr. Cohn gave him
injections and removed him from work until April 27. When Hunt
returned to work, Dr. Cohn continued his work restrictions.
In July, Dr. Cohn noted that Hunt was experiencing pain
while at work and removed him from work until August. In a
report dated August 1994, Dr. Cohn again noted that Hunt was not
to stand or walk for prolonged periods; was not to stoop, climb,
squat, crawl, or kneel; and could not carry heavy materials.
However, after several weeks, Dr. Cohn removed the restrictions
on prolonged standing and walking and noted that "otherwise, his
work restrictions are the same."
When Hunt returned to work in a modified light duty
capacity, he drove a forklift for three months until Ford moved
the job to another plant. Hunt then drove a forklift for two
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weeks until he was taken off that job because of Ford's seniority
policy.
Hunt returned to Dr. Cohn on April 5, 1995, complaining of
swelling in the right knee. Dr. Cohn diagnosed Hunt with
arthrosis of the right knee and stated, "I do not believe his
present condition is related to his previous work related
injury."
Ford had no positions within Hunt's restrictions and
released Hunt in December 1995. In a December 12, 1995 letter
written in response to Ford's request for information regarding
Hunt's restrictions, Dr. Cohn stated that, although Hunt's work
restrictions barred squatting, crawling, or climbing, "[a]ny
further restrictions, which would include the walking and
standing restrictions, would be due to arthrosis of his knee, not
related to a work injury." A month later, Dr. Cohn noted:
At this time, I will continue his permanent
work restrictions of no squatting, crawling,
or climbing. These are work related. At
this time, I will make his nonwork related
restrictions, which is mainly for arthritis,
of not to stand over 30 minutes at one time
with 10 minute breaks in-between.
Hunt filed an application alleging a change in his condition
due to temporary total disability as of December 6, 1995. At the
evidentiary hearing, Hunt testified that he did not have
arthritis in his right knee prior to his 1993 work injury or the
surgery that was performed on his knee. He also testified that
he did not have arthritis at any place except in his injured
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knee. In addition, the evidence at the hearing proved that Hunt
sought a second opinion from Dr. Michael T. Longstreet on May 28,
1996. Dr. Longstreet opined that the knee injury was not
arthritis and that the injury to Hunt's knee was work-related.
The deputy commissioner ruled that Hunt's current partial
disability was the result of two causes, one work-related and one
non-work-related. Applying the "two causes" rule, the deputy
commissioner ruled that Ford was liable for the entire resulting
disability. The deputy commissioner also found, however, that
Hunt failed to adequately market his residual capacity and,
therefore, denied Hunt any benefits.
Hunt and Ford each requested review by the commission. The
commission applied the "two causes" rule and found that the
evidence sufficiently established that Hunt's work injury was a
contributing factor to the disability because the standing and
walking restrictions were partly caused by Hunt's work-related
injury. In holding that the restrictions were not exclusively
caused by the arthritis condition, the commission cited Dr.
Cohn's January 23, 1996 letter and stated that "[i]f the
claimant's restrictions result 'mainly' from his arthritis, some
portion of it must result from his industrial injury." The
commission also relied on the proof that the two injuries were to
the same body member, the right knee. In addition, the
commission upheld the deputy commissioner’s finding that Hunt
failed to market his residual capacity and was not entitled to
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benefits from December 1995 to April 28, 1996. The commission
found, however, that Hunt was entitled to temporary partial
disability benefits beginning on April 29, 1996 when he found
employment within his residual capacity.
II.
The standard of our review of the commission's findings of
fact is well established.
We do not retry the facts before the
Commission nor do we review the weight,
preponderance of the evidence, or the
credibility of witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
Commission's findings, they will not be
disturbed by this Court on appeal, even
though there is evidence in the record to
support contrary findings of fact.
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510-11 (1983). The commission's interpretation of the
medical evidence is a finding of fact. See Ohio Valley Constr.
Co. v. Jackson, 230 Va. 56, 59, 334 S.E.2d 554, 556 (1985).
Viewed in the light most favorable to Hunt, see R.G. Moore
Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990), the evidence proved that in 1993 and in 1994, Dr. Cohn
limited Hunt from stooping, climbing, squatting, crawling,
kneeling, carrying heavy objects, prolonged standing, and
prolonged walking. All of those restrictions were caused by
Hunt's work-related injury. In August of 1994, Dr. Cohn removed
the restrictions on prolonged walking and standing. However, he
noted that Hunt still had "permanent work restrictions of no
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squatting, crawling, or climbing," which flowed from his
work-related injury.
In 1995, Dr. Cohn also noted that Hunt then had a
restriction on his standing "which is mainly from arthritis."
Interpreting Dr. Cohn's explanation of the restrictions, the
commission found that because Hunt's standing restriction in 1995
was not based solely on his arthritis, a portion of that
restriction resulted from Hunt's work-related injury, which was
the only other source of his knee disability. Credible evidence
supports that factual finding. The commission's interpretation
of Dr. Cohn's report is based on the reasonable inference that
Dr. Cohn understood that "mainly" means "in the principal
respect" or "for the most part." Webster's Third New
International Dictionary 1362 (Unabridged, 1965).
The principle is well established that when medical evidence
is not conclusive, it "is subject to the commission's
consideration and weighing." Hungerford Mechanical Corp. v.
Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). As the
trier of fact, the commission is also free to consider "[t]he
testimony of a claimant . . . in determining causation,
especially where the medical testimony is inconclusive." Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,
154 (1996). Although the evidence proved that in 1995 the
restriction against standing for prolonged periods was "mainly"
based on Hunt's arthritis, which Dr. Cohn deemed a
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non-work-condition, the evidence also proved that on several
occasions prior to 1995 Dr. Cohn barred Hunt from "prolonged
standing/walking" because of his work-related injury. The
commission's interpretation of Dr. Cohn's 1995 report was made
within the context of Hunt's medical history and Hunt's testimony
that, apart from his work-related injury and his arthritis, he
had no other physical ailments that contributed to the problems
with his knee. Credible evidence proved that Hunt's only other
disability to that same knee was a work-related injury.
Accordingly, we hold that the commission's finding is supported
by credible evidence.
III.
The principle is well established that "where a disability
has two causes: one related to the employment and one unrelated
[to the employment] . . . full benefits will be allowed."
Bergmann v. L&W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 803
(1981). The evidence proved that Hunt suffered disability in the
knee from both a work-related injury and a non-work-related
condition. Thus, the evidence proved Hunt's disability to the
knee resulted from two causes. Accordingly, we affirm the
commission's finding regarding Hunt's disability.
IV.
Hunt testified regarding the job search he conducted after
being released from Ford. He spoke with Ford and his union
representatives several times, he contacted the employers listed
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on his Work Search Contacts Record, he contacted potential
employers verbally, and he checked the newspaper employment
advertisements. Eventually, on April 29, 1996, Hunt obtained a
part-time position as a painter's helper earning an average of
$125 per week. Prior to his release, Hunt had been earning
approximately $614 per week at Ford.
The evidence proved that in April 1996, Hunt obtained
employment that he could perform consistent with his
restrictions. The commission made the following findings
regarding Hunt's efforts to locate that employment:
In April 1996, he found a part-time job with
J.M. Jolly, painting contractor, earning $125
per week. The claimant, who is 49 years old,
has worked for his preinjury employer in an
assembly plant for 16 years. There is no
information in the record concerning his
education or training. The claimant
indicated that he looked in the want ads but
could not perform the required job duties due
to his restrictions. . . . Considering the
evidence before us concerning the nature and
extent of his disability and his experience,
we find that he has found suitable employment
within his residual capacity.
Unlike the facts in National Linen Service v. McGuinn, 8 Va.
App. 267, 380 S.E.2d 31 (1989), where the employee "did not
attempt to find any other job," id. at 270, 380 S.E.2d at 33, the
evidence proved, and the commission found, that Hunt sought other
employment. Because the record contains credible evidence to
support the commission's findings, we affirm the ruling that Hunt
made reasonable efforts to market his residual work capacity.
For these reasons, we affirm the commission's award.
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Affirmed.
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