COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JOHN D. LUCEY & SON PLUMBING
AND
POTOMAC INSURANCE COMPANY OF ILLINOIS
MEMORANDUM OPINION *
v. Record No. 1003-98-1 PER CURIAM
SEPTEMBER 8, 1998
RONALD TATEM
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Bradford C. Jacob; Taylor & Walker, on
brief), for appellants.
(Kevin L. Hubbard, on brief), for appellee.
John D. Lucey & Son Plumbing and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission) erred in finding that (1) a de facto
award existed; (2) Ronald Tatem's ongoing disability was causally
related to his October 27, 1995 injury by accident; (3) Tatem did
not unjustifiably refuse selective employment; and (4) employer
was responsible for the cost of medical treatment related to
Tatem's psoriatic condition. Employer also contends that the
commission erred in considering Dr. Richard T. Holden's June 2,
1997 medical report as evidence. Upon reviewing the record and
the briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. De Facto Award
The commission ruled that a de facto award existed,
obviating the need for Tatem to prove that he reasonably marketed
his residual skills or that his disability was causally related
to his compensable injury by accident. As a result, the
commission placed the burden on employer to prove that Tatem's
on-going disability was not causally related to his compensable
industrial injury. In so ruling, the commission found the
following:
We decline to establish a bright line
test for determining how many weeks of
voluntary payments are enough for a de facto
award. Here, the employer not only paid
benefits for about twenty weeks but hired a
vocational rehabilitation provider to help
locate work and did not contest the
compensability of the claim at the
hearing. . . . [T]here is no evidence that
[Tatem] declined to sign any agreements.
When we consider all of the employer's
actions, we agree with the Deputy
Commissioner that is was reasonable to infer
that the parties had reached an agreement as
to the payment of compensation.
The record amply supports the commission's findings that
employer voluntarily paid benefits to Tatem, did not contest the
compensability of the claim at the hearing, and hired a
rehabilitation counselor to help Tatem find work. Pursuant to
our holding in National Linen Serv. v. McGuinn, 5 Va. App. 265,
268-71, 362 S.E.2d 187, 188-90 (1987) (en banc), and under the
circumstances of this case, we cannot say that the commission
erred in ruling that a de facto award existed and in allocating
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the burden of proof to employer.
II. Disability
On appeal, we view the evidence in the light most favorable
to the party prevailing below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that employer's evidence
sustained its burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In ruling that employer failed to prove that Tatem's ongoing
disability was not causally related to his compensable accident,
the commission found as follows:
Dr. Holden believes that [Tatem's]
psoriatic arthritis was a significant reason
for his disability but also believes that the
claimant had nerve damage from a fragment of
a ruptured disc and that the psoriatic
arthritis caused an inflammatory process. In
his most recent report of June 2, 1997, Dr.
Holden again expressed his inability to
determine the exact cause or causes of
[Tatem's] continuing disability. He stated
[Tatem's] psoriatic arthritis "[m]ust be put
under control before any further (orthopedic)
evaluations can be done."
Dr. Holden is unable to render an
opinion as to the cause of [Tatem's]
continuing problems and has not excluded
[Tatem's] industrial accident as a cause.
The principle is well established that full
benefits are allowed where a disability has
two causes, one related to the employment and
one unrelated.
Based upon Dr. Holden's expressed inability to determine the
extent to which Tatem's industrial accident contributed to his
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ongoing disability and the lack of any medical opinion ruling out
the industrial accident as a cause of Tatem's continuing
disability, the commission could reasonably infer that Tatem's
disability had two possible causes, one-work related and one
non-work-related. Applying the "two-causes" rule, the commission
did not err in awarding Tatem continuing disability benefits.
See Shelton v. Ennis Business Forms, Inc., 1 Va. App. 53, 55, 334
S.E.2d 297, 299 (1985). Accordingly, we cannot find that
employer's evidence sustained its burden of proving that Tatem's
disability was not causally related to his compensable injury by
accident.
III. Unjustified Refusal of Selective Employment
"To support a finding of refusal of selective employment
'the record must disclose (1) a bona fide job offer suitable to
the employee's capacity; (2) [a job offer that was] procured for
the employee by the employer; and (3) an unjustified refusal by
the employee to accept the job.'" James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting
Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335
S.E.2d 379, 380 (1985)).
In affirming the deputy commissioner's decision that Tatem's
conduct at his job interview did not sabotage the possibility of
employment as a janitor with Community Alternatives, the
commission found as follows:
According to [Tatem's] testimony, he
told the prospective employer that he had
reservations about whether he could perform
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the duties. [Tatem] testified "I told them I
wasn't sure if I could do that, I would try.
I would try the best I could."
[Tatem's] testimony is substantially
corroborated by the testimony of the
vocational rehabilitation counselor who was
advised by the prospective employer that
[Tatem] "[s]tated that he wasn't sure if he
was able to do the job." The prospective
employer did not offer the job to [Tatem]
because they could not hire someone "[i]f
they don't feel that they can do the job."
[Tatem] expressed his concern,
admittedly subjective, about his ability to
perform the job. Most importantly, he also
stated his willingness to try.
Just one month before this job
interview, on September 3, 1996, Dr. Holden
reported that [Tatem] could perform a
sedentary job on "a trial basis," that
[Tatem] would experience pain if he sat or
stood too long and that he needed to
alternate sitting and standing every fifteen
to twenty minutes. We find [Tatem]
reasonably expressed concern about his
ability to perform a job, which, as described
in the job description, required him to stand
for three hours and sit for less than one.
Those findings are supported by Tatem's testimony, which was
corroborated by the vocational rehabilitation counselor, and the
commission's resolution of the conflict between the
standing/sitting requirements stated in the job description and
Dr. Holden's September 3, 1996 trial release to sedentary
employment with alternate standing and sitting every fifteen
minutes. Thus, we cannot find that Tatem's conduct at the job
interview was unreasonable and calculated to prevent an actual
offer of employment. See Johnson v. City of Clifton Forge, 9 Va.
App. 376, 378, 388 S.E.2d 654, 655 (1990) (en banc).
Accordingly, the commission did not err in finding that Tatem's
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conduct did not constitute an unjustified refusal of selective
employment with Community Alternatives.
We also hold that the commission did not err in finding that
Tatem did not unjustifiably refuse or sabotage a position with
White's Nursery and Greenhouse, Inc. ("White's") as a greenhouse
production worker. Employer speculated that information
contained on Tatem's job application regarding his inability to
lift over forty-five pounds caused White's not to grant Tatem an
interview or offer him a job. However, no evidence proved why
White's did not grant Tatem an interview or offer him a job.
Rather, the evidence established that Tatem, who cannot read or
write, received assistance from the vocational rehabilitation
counselor and/or family members in completing the application.
No evidence proved who wrote the statements regarding Tatem's
lifting ability on the job application. Moreover, the
rehabilitation counselor admitted that the job with White's did
not require lifting more than twenty-five to thirty pounds.
Thus, the evidence failed to establish that the commission
erred in ruling that Tatem did not unjustifiably refuse selective
employment with White's.
IV. Psoriatic Condition/Causation
Based upon Dr. Holden's June 2, 1997 medical report, the
commission could reasonably infer that treatment of Tatem's
psoriatic arthritis condition was a medically necessary component
of the successful and complete evaluation of the orthopedic
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problems caused by Tatem's compensable injury by accident. In
light of these circumstances and our holding in Papco Oil Co. v.
Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 862 (1997), we cannot
say that the commission erred in holding employer responsible for
the cost of medical treatment necessary to bring Tatem's
pre-existing psoriatic arthritis condition under control in order
to treat his work-related condition.
V. Dr. Holden's June 2, 1997 Medical Report
Page forty-nine of the transcript of the June 10, 1997
hearing reflects that the deputy commissioner left the record
open for fourteen days, without objection from employer, to allow
Tatem to designate Dr. Holden's June 2, 1997 medical report as
part of the record. Thus, although the commission's opinion
incorrectly cited to page forty-seven of the transcript, the
commission correctly found that the deputy commissioner left the
record open for Tatem to file the report.
The record shows that Tatem filed Dr. Holden's June 2, 1997
report with the commission on June 10, 1997, before the
fourteen-day period expired. Accordingly, the commission did not
err in considering that report in rendering its decision.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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