COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
POWELL MOUNTAIN COAL COMPANY AND
RELIANCE INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1936-00-3 JUDGE G. STEVEN AGEE
MARCH 27, 2001
GEORGE JEFFREY MOSKO
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lisa Frisnia Clement (Michael F. Blair; J.
Jasen Eige; Penn, Stuart & Eskridge, on
brief), for appellants.
Susan D. Oglebay for appellee.
Powell Mountain Coal Company and its insurer, Reliance
Insurance Company (collectively "the employer"), appeal an order
of the Workers' Compensation Commission ("the commission")
awarding George Mosko ("the claimant") disability benefits. The
employer asserts that the commission erred by (1) finding it had
jurisdiction to consider a claim arising in the Commonwealth of
Kentucky; and (2) holding that the claimant had not been
released to light duty work and thus had no duty to market his
residual capacity. For the reasons set forth below, we affirm
the commission's decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
BACKGROUND
The employer hired the claimant in Lee County, Virginia in
October 1995. No written contract of employment has ever
existed between employer and claimant. Between October 1995 and
October 1998, the employer transferred the claimant back and
forth between various mines in Virginia. In the fall of 1998,
the employer posted a job description announcing the hiring of
new employees and the transferring of current employees to
another mine. All applications for the positions were received
in Virginia where all the employment decisions associated with
the positions were made. The claimant requested consideration
for a position and was subsequently transferred to the
employer's Kentucky mine.
In the application process, the claimant, as a current
employee, was not required to fill out a job application or sign
an employment contract. The claimant was required, however, to
complete a mandatory training program at the Kentucky mine and
sign a "certificate of training" form provided by the U.S.
Department of Labor. The form signed by the claimant was
denominated "newly employed experienced miner." The employer
testified that this form is required by the federal government
any time an individual begins working in a particular mine, and
it would have been required even if the claimant was transferred
to a mine in Virginia.
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The new work location in Kentucky was about 17 miles from
the claimant's Virginia home. The new position, described as a
transfer, resulted in no change in pay or duties, just a change
in location and the assigned shift. The transfer was not
intended to be permanent, and the claimant could have been
transferred to another mine or shift at any time. The
employer's general superintendent described the claimant's
employment status as "a Powell Mountain Coal Company employee"
and "not exclusively employed in Kentucky."
After his training, the claimant began working at the
Kentucky mine and suffered an injury on October 12, 1998, less
than a week after he began at the new site. The claimant did
not immediately file a Kentucky or Virginia workers'
compensation claim, yet shortly after the accident he began
receiving compensation checks. (The claimant, did, however,
file a February 1999 claim in Virginia.) The claimant testified
that he was not aware the checks he received were issued under
Kentucky law until he received notice in the summer of 1999 that
the benefits would be terminated.
After the accident on October 12, 1998, the claimant
complained of pain in his back and right leg. He was examined
for a low back strain at Lee County Community Hospital. On
October 23, 1998, Dr. Paul C. Peterson began caring for the
claimant resulting in a determination that surgery was required.
After a December 14, 1998 surgery the claimant reported
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improvement in his right leg pain, yet he continued to suffer
back pain.
In the spring of 1999, the claimant was referred to
additional physicians and healthcare providers who diagnosed and
treated his back pain. In June 1999, the claimant underwent a
Functional Capacities Evaluation. The report generated from the
evaluation placed restrictions on sitting and standing, and
limitations on repetitive bending, kneeling, squatting, standing
and stair climbing. The evaluation further noted that the
claimant was able to infrequently lift 20 pounds from floor to
waist and 15 pounds frequently. The evaluation restricted the
claimant to light sedentary employment.
In a report generated on June 30, 1999, Dr. Peterson
concurred with the evaluations findings, and recommended the
claimant continue with pain management. It was further
recommended that the claimant undergo vocational rehabilitation.
The doctor stated, "We will be happy to review any job
description prior to releasing the patient to employment." As
to work status, the doctor stated, "[a]s noted above, he is
unable to return to the heavy demand of his previous employment.
He is restricted to light sedentary employment, as outlined in
the functional capacity evaluation. We will consider him to be
MMI."
In August 1999, Dr. Robert P. Goodman examined the claimant
at the employer's request. In his report, Dr. Goodman noted
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similar lifting limitations and wrote "I think he is MMI."
(Emphasis added).
II.
JURISDICTION
Code § 65.2-508 provides that where an employee is injured
while he is employed outside the Commonwealth, and such injury
would entitle the employee to compensation had it occurred
within the Commonwealth, the claimant shall be entitled to
compensation if: (1) the contract of employment was made within
the Commonwealth, and (2) the employer's place of business is in
the Commonwealth, provided the contract of employment was not
expressly for services exclusively outside the Commonwealth.
The evidence conclusively established that the contract for
employment was made in the Commonwealth with an employer doing
business here. The claimant testified he initially applied for
and was interviewed for the transfer at his employer's place of
business in Virginia. The employer testified that the claimant
was hired in Virginia through its Virginia office, its place of
business. The claimant is, therefore, entitled to benefits
unless the contract was expressly for services outside of the
Commonwealth.
We hold that the commission's finding that the employment
contract was not expressly for services outside of Virginia is
supported. The employer hired the claimant in Virginia
approximately three years prior to his accident, and the
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claimant worked in Virginia during that time for all but the
week of his accident. The claimant testified that he was
initially unaware that the position he was interested in was in
Kentucky. The employer testified that the employee was not
exclusively a Kentucky employee, and could be transferred
between mines and shifts at any time, as had occurred in the
past. In considering these facts, the commission could find the
transfer to Kentucky did not constitute a new contract of
employment and did not constitute an agreement by which the
claimant would work exclusively in Kentucky.
As all three prongs of the test for jurisdiction are met,
the commission did not err in finding it had jurisdiction to
consider the claimant's claim for benefits.
III.
MEDICAL RELEASE TO WORK
On appeal, we review the evidence in the light most
favorable to the prevailing party below. See R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). Factual findings made by the commission will be upheld
on appeal if supported by credible evidence. See James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989).
In this matter, the commission found that the claimant was
not released to light duty work. The employer, however, argues
the commission erred by not recognizing the claimant's release
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as stated in a June 30, 1999 physician's report issued by the
claimant's primary physician. In its argument, the employer
points to the physician's comments in the report providing "he
is restricted to light sedentary employment as outlined in the
functional capacity evaluation. We will consider him to be at
MMI [maximum medical improvement]." It argues that the
physician would not have provided restrictions for the claimant
if he had not concluded the claimant was capable of returning to
some form of work at that time.
Yet, in its argument, the employer fails to recognize that
the doctor's report also requests the claimant be provided
vocational rehabilitation. The doctor further states, "We will
be happy to review any job descriptions prior to releasing the
claimant to employment." (Emphasis added). In view of these
additional comments by the primary physician, we cannot find
that the commission erred in finding that the claimant was not
released to light duty work on June 30, 1999 and, therefore, had
no obligation to market his residual capacity.
As we find no error by the commission, its decision
awarding the claimant benefits is affirmed.
Affirmed.
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