COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
WESTMORELAND COAL COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2159-96-3 JUDGE RICHARD S. BRAY
MAY 6, 1997
LARRY G. KILGORE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael F. Blair (Penn, Stuart & Eskridge, on
brief), for appellant.
Susan D. Oglebay for appellee.
Westmoreland Coal Company (employer) appeals a decision of
the Virginia Workers' Compensation Commission (commission) which
awarded temporary total disability benefits to Larry G. Kilgore
(claimant) upon a change in condition application. On appeal,
employer contends that the commission erroneously concluded (1)
that claimant was partially disabled when his employment was
terminated and, thereafter, adequately marketed his "residual job
skills" and (2) that claimant's psychiatric difficulties were
causally related to the industrial injury, resulting in
subsequent temporary total disability. We affirm the award.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Guided by well established principles, we construe the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence in the light most favorable to the party prevailing
below, claimant in this instance. See Crisp v. Brown's Tysons
Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916
(1986). "If there is evidence, or reasonable inferences can be
drawn from the evidence, to support the Commission's findings,
they will not be disturbed on review, even though there is
evidence in the record to support a contrary finding." Morris v.
Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986); see Code § 65.2-706.
A "change in condition" contemplated by the Virginia
Workers' Compensation Act is "'(1) . . . a change in the
employee's capacity to work . . . (2) . . . due to a condition
causally connected with the injury originally compensated.'"
AMP, Inc. v. Ruebush, 10 Va. App. 270, 273-74, 391 S.E.2d 879,
881 (1990) (quoting King's Market v. Porter, 227 Va. 478, 483,
317 S.E. 146, 148 (1984)); see Code § 65.2-101. The commission's
determination that a claimant's recurrent incapacity to work is
causally related to the original industrial injury is a "finding
of fact . . . [that is] binding on appeal if supported by
credible evidence." Board of Supervisors v. Martin, 3 Va. App.
139, 142, 348 S.E.2d 540, 541 (1986).
PHYSICAL DISABILITY AND MARKETING OF RESIDUAL CAPACITY
An employee working under restrictions attendant to a
compensable injury may have benefits restored upon termination of
such employment, provided the employee thereafter reasonably
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markets his or her residual earning capacity. See, e.g., Huffman
v. Toney Arey Trucking, 70 O.I.C. 85, 88 (1991); see also
Pleasants v. AT&T Microelectronics, 68 O.I.C. 169 (1989). In
assessing a reasonable marketing effort, the commission should
consider (1) the nature and extent of employee's disability, (2)
employee's training, age, experience, and education (3) the
nature and extent of employee's job search, (4) employee's intent
in conducting his job search, (5) availability of jobs in the
area suitable for employee considering his disability, and (6)
any other matter affecting the employee's capacity to find
suitable employment. See National Linen Serv. v. McGuinn, 8 Va.
App. 267, 272, 380 S.E.2d 31, 34 (1989).
In this instance, the records of claimant's treating
physician, Dr. Gary Williams, document claimant's limited work
capacity dating from and attributable to injury suffered in the
industrial accident of July 22, 1992. When Dr. Williams released
claimant to work in December, 1994, he stipulated "light to
medium duty as outlined in the most recent job description." In
correspondence dated January 26, 1996, Dr. Williams reported that
"[claimant's] physical capacities had not improved beyond what
they were prior to his having to come out of work in late 1994."
The evidence discloses that claimant's post-accident work
activities were compatible with his limited abilities until
"layoff" on July 31, 1995. Thereafter, claimant unsuccessfully
applied for other employment "[o]nce, twice a week," despite
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income from unemployment benefits and a limited local job market.
Such evidence, together with other relevant circumstances,
provides ample support for the commission's finding that claimant
was partially disabled by the original injury and reasonably
pursued employment suitable to his residual capacity between
August 1 and December 16, 1995.
PSYCHIATRIC DISABILITY
A. Procedural Bar
Employer argues that claimant failed to properly preserve
for appeal the deputy commissioner's finding that "no medical
opinion . . . causally relate[d]" claimant's psychiatric disorder
to the original accident. Assuming, without deciding, that
claimant's application for review by the commission did not
specifically identify this issue, it was, nevertheless, subject
to commission review. Virginia Workers' Compensation Commission
Rule 3.1. Although "[a] request for review should assign as
error specific findings of fact and conclusions of law," the
commission may, sua sponte, "address any error and correct any
decision . . . if such action is considered . . . necessary for
just determination of the issues." Rule 3.1 (emphasis added);
see also Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 77-78,
367 S.E.2d 204, 206 (1988) (failure to specify exceptions in
request for review is not jurisdictional; commission may consider
any errors of deputy commissioner).
B. Merits
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Emotional harm attendant to physical injury is compensable,
provided it is a "natural consequence that flows from the injury"
and not the result of "'an independent intervening cause
attributable to claimant's own intentional conduct.'" Morris, 3
Va. App. at 283, 348 S.E.2d at 879 (quoting A. Larson, The Law of
Workmen's Compensation §§ 13, 81.30); see Seneca Falls Greenhouse
& Nursery v. Layton, 9 Va. App. 482, 486, 389 S.E.2d 184, 187
(1990).
Here, Dr. Williams' records clearly document a psychiatric
component to claimant's injury, described as "situational
depression" resulting from chronic low back pain and frustration
with related physical limitations. He noted, as early as
December 18, 1992, that claimant was "depressed and very
nervous," "anxious and tense," with "suicidal thoughts" because
of "pain" and "lack of improvement." On October 31, 1995, he
observed that claimant was "very desponded [sic] about his
condition." Claimant intentionally overdosed on prescribed pain
and anti-anxiety medication on December 16, 1995, resulting in
hospitalization for approximately a week.
Following this incident, claimant explained to Dr. Russell
McKnight, a psychiatrist, that he was "overwhelmed with
depress[ion] . . . [and] hopelessness due to pain," "not wanting
to live anymore because of the pain," "living day to day." Dr.
McKnight's notes reflect severe depression, nervousness and sleep
difficulties associated with claimant's persistent pain. He
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opined that claimant suffered from "Anxiety Depressive Syndrome
with Insomnia secondary to Chronic [back] Pain," and prescribed
"antidepressant medication," with attendant plans to "work this
up quickly" incidental to further treatment of claimant. Dr.
Williams agreed, noting claimant's "pain syndrome" and
"[a]ssociated depression, status post suicide gesture/attempt."
(Emphasis added).
The findings and conclusions of Drs. Williams and McKnight
provide abundant evidence to support the commission's conclusion
that claimant's psychiatric difficulties were attributable to the
original injury. Such evidence, together with claimant's
declared inability to presently seek new employment, sufficiently
established compensable temporary total disability. See Dollar
Gen. Store v. Cridlin, 22 Va. App. 171, 176-77, 468 S.E.2d 152,
154-55 (1996).
Accordingly, the commission correctly concluded that
claimant was entitled to commensurate benefits, and we affirm the
award.
Affirmed.
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