COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
BROWN & ROOT, INC. and
ARGONAUT INSURANCE COMPANY
MEMORANDUM OPINION**
v. Record No. 0580-97-4 BY JUDGE CHARLES H. DUFF
DECEMBER 23, 1997
LUTHER H. RICHARDS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Mark D. Crawford (Friedlander, Misler,
Friedlander, Sloan & Herz, on briefs), for
appellants.
Gregory J. Harris (Law Offices of Gregory
J. Harris, P.C., on brief), for appellee.
Brown & Root, Inc. and Argonaut Insurance Company
(collectively employer) appeal from a decision of the Virginia
Workers' Compensation Commission (commission) holding that Luther
H. Richards (claimant) was temporarily totally disabled from
January 5, 1995 through the present. Employer further contends
the commission erred when it found that claimant was marketing
his remaining work capacity. For the following reasons, we
affirm the commission in part and reverse it in part.
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
On appeal, we review 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).
Claimant sustained a compensable injury to his neck on July
13, 1994. In a decision ultimately affirmed by this Court, See
Brown & Root, Inc. v. Richards, Record No. 1548-95-4 (Va. Ct.
App. Dec. 19, 1995), a deputy commissioner found that claimant
was entitled to temporary total disability payments from July 20,
1994 through January 5, 1995. On February 3, 1995, claimant
filed an application for change of condition, contending that he
continued to be temporarily totally disabled from January 6, 1995
through the present.
In his application, claimant cited to a January 6, 1995
"Evaluation of Disability Status" form completed by Dr. James
Smith. On that form, Dr. Smith checked a box indicating that
claimant had "[m]oderate limitation of functional capacity;
capable of clerical/administrative (sedentary*) activity.
(60-70%)." He also checked boxes indicating that claimant was
not totally disabled, but was temporarily unable to work. Dr.
Smith indicated that claimant could probably return to work on
March 15, 1995, and wrote that claimant "cannot return to regular
duty - hope for light duty - no lifting over 10 lbs. no overhead
work."
2
On January 26, 1995, Dr. Smith wrote a note directing
claimant to stay out of work for five weeks until follow up. Dr.
Smith gave no indication that claimant could perform any
light-duty work with restrictions. On March 2, 1995, claimant
advised Dr. Smith that "there were no light duty options
available to return to work . . . ." Dr. Smith noted, "I . . .
feel that his prognosis for return to his previous line of work
[as a heavy equipment operator] is tenuous based on his progress
to date."
Dr. Smith referred claimant to Dr. Steven Tynes, who first
saw claimant on March 30, 1995. Dr. Tynes' notes between March
30, 1995 and February 5, 1996 are silent regarding claimant's
ability to return to work. Dr. Tynes' February 5, 1996 report
reflects claimant's reported ability to "probably lift up to 25
lbs without any problems." On March 11, 1996, claimant stated
that he could drive up to one and a half hours before he began to
suffer from paresthesia in his arms. Dr. Tynes wrote of claimant
on March 11, 1996, "I have already stated that I do not feel he
will ever be able to return to his former job as a heavy
equipment operator. [Claimant] has a 5th [sic] grade education.
Therefore, his current opportunities for other meaningful
employment are quite limited due to his education." (Emphasis
added.).
Claimant, who is fifty-two years old, has a fourth grade
education and is illiterate, testified extensively regarding
3
efforts he had made toward finding light-duty employment. When
asked by counsel whether Dr. Smith or Dr. Tynes had ever released
him to perform light-duty work, claimant replied: "Yes, sir."
Later, when asked what steps he took after seeing his doctors
in February or March 1995, claimant answered, "[w]hen he -- the
doctor did say on light-duty, able to do some light-duty work, I
did contract [sic] Brown & Root." On cross-examination, employer
asked claimant: "[Y]ou're not claiming that you're totally
disabled, that you can't do anything, right?" Claimant
responded: "No, sir." Claimant never testified that, after
March 2, 1995, he was unable to perform light-duty work.
John Bullock, a private investigator, conducted surveillance
of claimant from March 19 through March 21, 1996. On all three
days he observed claimant at the Horseshoe Bay Marina. A
videotape taken by Bullock shows claimant hammering and
transporting bags of concrete in a wheel barrow. The videotape
also shows claimant putting on a utility belt upon arriving at
the marina.
Based on Dr. Smith's January 26, 1995 and March 2, 1995
notes, the deputy commissioner found that claimant was totally
disabled between those dates. The deputy commissioner found,
however, that there was no medical evidence that claimant was
totally disabled between January 6 and January 26, 1995, or after
March 2, 1995. The deputy commissioner noted that "[u]pon
considering the testimony of the claimant, in conjunction with
4
the medical evidence and the videotape viewed at the hearing, the
Commission does not find the claimant to be a credible witness."
The deputy commissioner further found that claimant was not
sufficiently marketing his remaining work capability.
The full commission reversed the deputy commissioner's
holding that claimant was not totally disabled between January 6
and January 26, or after March 2, 1995, finding "upon Review that
the claimant's evidence, taken as a whole, establishes a change
in condition and total disability commencing January 6, 1995." 1
The commission focused on the fact that none of the medical
records specifically released claimant to light-duty work. It
further concluded that claimant's efforts to market what
remaining work capacity he possessed were reasonable.
II.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground
of change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted). Unless
we can say as a matter of law that claimant's evidence failed to
meet his burden of proving temporary total disability beginning
1
We find no support for employer's contention that the
commission impermissibly shifted the burden of proof to employer
with regard to the time period of January 6 through March 2,
1995. Further, we find it unnecessary to address this question
as it pertains to the period of time after March 2, 1995.
5
January 6, 1995, the commission's findings are conclusive and
binding upon us. See Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 833, 835 (1970).
To establish entitlement to total disability benefits, a
claimant must prove that he is totally incapacitated from
performing any work, or that he was unsuccessful, after expending
reasonable effort, in securing selective employment. See Big D
Quality Homebuilders v. Hamilton, 228 Va. 378, 382, 322 S.E.2d
839, 841 (1984). "'No injury or occupational disease is
compensable as a total incapacity until it is proven that the
injury or disease has effectually closed the labor market to the
employee. A showing that he may not return to his former
occupation is not such proof.'" Pocahontas Fuel Co. v. Barbour,
201 Va. 682, 684-85, 112 S.E.2d 904, 906 (1960) (quoting
approvingly from opinion of dissenting commissioner). In
determining whether a claimant is capable of performing some
work, we look at "all of the facts and surrounding circumstances.
This would necessarily include consideration of the claimant's
perception of his condition, his abilities, and his
employability, and of the basis for that perception." Ridenhour
v. City of Newport News, 12 Va. App. 415, 418, 404 S.E.2d 89,
90-91 (1991) (rejecting contention that a claimant had no duty to
seek selective employment unless informed by his physician that
he could return to light-duty work).
Credible evidence supports the commission's finding that
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claimant was totally disabled from January 26, 1995 through
March 2, 1995. The January 26, 1995 note states that claimant is
unable to work and gives no indication that claimant is able to
perform light-duty work. However, no credible evidence supports
a finding of total disability from January 6 through January 25,
1995, and subsequent to March 2, 1995. 2
The January 6, 1995 evaluation form clearly states that
claimant was not totally disabled, that his level of impairment
consisted of "[m]oderate limitation of functional capacity," and
that he was capable of sedentary work. This evaluation form,
without more, does not constitute credible evidence sufficient to
meet claimant's burden of proving total disability between
January 6 and January 25, 1995.
With regard to the time period subsequent to March 2, 1995,
the commission seemingly ignored the fact that, when asked
whether his physicians had released him to return to light-duty
work in February or March 1995, claimant stated unequivocally:
"Yes, sir." See Pence Nissan Oldsmobile v. Oliver, 20 Va. App.
314, 318, 456 S.E.2d 541, 543 (1995) (reaffirming applicability
to workers' compensation proceedings of Massie v. Firmstone, 134
Va. 450, 462, 114 S.E. 652, 656 (1922), that a party is bound by
his testimony at trial). Claimant admitted on cross-examination
2
Under the circumstances, we find it unnecessary to address
employer's question regarding whether the commission
impermissibly disregarded the deputy commissioner's credibility
findings.
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that he was not totally disabled, 3 and at no point claimed that
he was unable to perform light-duty work. The videotape of
claimant's activities at the marina reinforces employer's
position that claimant was capable of performing light-duty work.
Likewise, claimant's medical records fail to prove total
disability subsequent to March 2. At no point after March 2,
1995 did either of claimant's physicians state that claimant was
unable to perform any type of work. Rather, the records merely
state that claimant would not be able to return to his regular
employment as a heavy equipment operator. When the medical
records are considered in conjunction with claimant's testimony,
it is readily apparent that claimant was capable of light-duty
work subsequent to March 2, 1995. Accordingly, there is
insufficient credible evidence in the record to support the
commission's finding that claimant was totally disabled after
March 2, 1995.
III.
Claimant testified that he contacted six prospective
employers between January 1995 and March 1996. He sought
light-duty work from employer in approximately January 1995.
Between January and March 1995, and again in March 1996, he
sought employment with Austin Engineering. He contacted
3
While claimant contends that the question was vague and the
response subject to interpretation, we do not find it so.
Moreover, claimant failed, on re-direct, to clarify this
response.
8
Untermeyer Tire in February 1995 and March 1996, Nash Builders in
March 1995, Cottonwood Shores between February and March 1995,
and Horseshoe Bay Marina in the summer of 1995 and on March 15,
1996. Both Untermeyer Tire and Horseshoe Bay Marina advised
appellant the first time he sought employment with them that he
was not eligible for employment there because of his physical
condition. He contacted employers not only in his hometown of
Marble Falls, Texas (population approximately 16,000), but also
in Austin, Texas. 4 Claimant testified that his fiancee checked
the local weekly newspaper for jobs for him.
"In order to receive benefits under the Workers'
Compensation Act, a claimant who has been injured in a
job-related accident must market his remaining capacity to work."
Herbert Bros., Inc. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d
283, 284 (1992). "[S]ince the hearing in this case was on
[claimant's] application, [he] had the burden of proving that he
made a reasonable effort to find suitable employment." National
Linen Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33
(1989).
[I]n deciding whether a partially
disabled employee has made reasonable effort
to find suitable employment commensurate with
his abilities, the commission should consider
such factors as: (1) the nature and extent of
[the] employee's disability; (2) the
employee's training, age, experience, and
education; (3) the nature and extent of [the]
4
Claimant testified that Austin is approximately fifty miles
and a one-hour drive from his residence. Both Drs. Smith and
Tynes are located in Austin.
9
employee's job search; (4) the availability
of jobs in the area suitable for the
employee, considering his disability; and (6)
any other matter affecting [the] employee's
capacity to find suitable employment.
Id. at 272, 380 S.E.2d at 34 (footnotes omitted). See Bateman, 4
Va. App. at 466-67, 359 S.E.2d at 103 (finding insufficient
marketing of remaining work capacity where, over a period of six
months, the claimant contacted thirteen prospective employers,
submitted just five job applications, and failed to register with
the unemployment office). Cf. Jenkins, 14 Va. App. at 717, 419
S.E.2d at 284 (finding adequate marketing where, over a period of
several months, claimant, who was forty-nine years old with just
seven years of formal education, contacted thirty prospective
employers and submitted ten application forms).
With regard to the period of time between January 6 and
January 25, 1995, Dr. Smith indicated on January 6 that claimant
was capable of performing "clerical/administrative" employment.
Thus, claimant's illiteracy and lack of education effectively
precluded him from procuring selective employment. Accordingly,
credible evidence supports the commission's finding that claimant
was sufficiently marketing his remaining work capacity during
that period of time.
Claimant was not adequately marketing his remaining work
capacity subsequent to March 2, 1995. He contacted a total of
six employers between January 6, 1995 and April 18, 1996, and
there is no evidence that he made any job contacts between April
10
1995 through February 1996. Claimant returned to at least two of
these employers after they previously told him that he would not
be hired because of his physical condition. Although his fiancee
checked the local newspaper for work for claimant, there is no
evidence that claimant examined any newspapers with larger
circulations, such as those published in nearby Austin, Texas.
Furthermore, there is no evidence that he registered with his
local unemployment office, or that he otherwise sought any
retraining assistance.
We recognize that claimant is handicapped by his illiteracy
and lack of formal education; nevertheless, these factors would
not prevent him from more aggressively pursuing low-skilled,
light-duty employment both in his hometown and in the Austin
area. Accordingly, we hold that, as a matter of law, the
commission erred in finding that claimant adequately marketed his
remaining work capacity beginning March 2, 1995.
Affirmed in part,
reversed in part.
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