COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
THE TOWN OF TAPPAHANNOCK MAINTENANCE DEPARTMENT
AND FIDELITY & CASUALTY INSURANCE COMPANY
v. Record No. 2240-96-2 MEMORANDUM OPINION *
PER CURIAM
DALL REYNOLDS MARCH 4, 1997
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kathryn Spruill Lingle; Midkiff & Hiner, on
brief), for appellants.
(Robert L. Flax; Flax, Embrey & Stout, on
brief), for appellee.
The Town of Tappahannock Maintenance Department and its
insurer (hereinafter collectively referred to as "employer")
contend that the Workers' Compensation Commission (commission)
erred in finding that (1) Dall Reynolds (claimant) proved he
sustained an injury by accident arising out of and in the course
of his employment on April 5, 1994; and (2) claimant proved that
he made a good faith effort to market his residual work capacity
after August 18, 1994. Pursuant to Rule 5A:21(b), claimant
raises the additional question of whether the commission erred in
finding that employer is not responsible for unauthorized medical
treatment rendered by Drs. Robert W. Poole and Michael J. Decker
and The Riverside Hospital emergency room. Upon reviewing the
record and the briefs of the parties, we conclude that this
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Claimant testified that on April 5, 1994, he and a coworker
lifted a fifty-five gallon barrel full of wet grass clippings and
dumped the clippings into a truck. Five to ten minutes later,
while riding in the truck, claimant felt a sharp pain in his
back. The pain continued the remainder of his shift. Claimant
reported the incident to his supervisor, James Hill, on the day
it occurred. The Employer's First Report of Accident indicated
that claimant hurt his back on April 5, 1994 while lifting a
trash can.
In holding that claimant met his burden of proof, the
commission found as follows:
The employer argues that the claimant
did not credibly describe an injury by
accident on April 5, because his
interrogatories identify April 8 as the date
of the accident, the emergency room record
reflects pain since April 7, and the claimant
was unsure in his testimony of the date. The
employer also argues that the pain was five
to ten minutes after the lifting incident and
therefore cannot be linked to the lifting.
It is well-established that in order to prove
a compensable injury by accident it is not
necessary that the pain be contemporaneous
with the incident. A valid claim will not be
denied because of confusion about the date of
the incident. We agree with the Deputy
Commissioner that the claimant credibly
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described an injury by accident which
occurred when he lifted a heavy barrel of
grass cuttings. Although the initial
emergency room records do not identify such
an incident, other medical reports generally
corroborate this testimony.
"In order to carry his burden of proving an 'injury by
accident,' a claimant must prove that the cause of his injury was
an identifiable incident or sudden precipitating event and that
it resulted in an obvious sudden mechanical or structural change
in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d
858, 865 (1989). Claimant's undisputed testimony provides
credible evidence to support the commission's finding. Thus,
that finding is conclusive on this appeal. James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
In rendering its decision, the commission considered the
medical histories, claimant's interrogatory answers, and
claimant's testimony and resolved any conflicts in this evidence
in favor of claimant. "In determining whether credible evidence
exists, the appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's finding." Id.
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II.
In order to establish entitlement to benefits, a partially
disabled employee must prove that he has made a reasonable effort
to procure suitable work but has been unable to do so. Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 101 (1987). "What constitutes a reasonable marketing effort
depends upon the facts and circumstances of each case." The
Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314,
318 (1993). We have discussed factors which the commission
should consider in deciding whether a claimant has made
reasonable good faith efforts to market his remaining capacity:
(1) the nature and extent of employee's
disability; (2) the employee's training, age,
experience, and education; (3) the nature and
extent of employee's job search; (4) the
employee's intent in conducting his job
search; (5) the availability of jobs in the
area suitable for the employee, considering
his disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted). In reviewing the commission's
findings, "we view the evidence in the light most favorable to
. . . the prevailing party before the commission." Id. at 270,
380 S.E.2d at 33.
In awarding temporary total disability benefits to claimant,
the commission found that claimant marketed his residual work
capacity. In so ruling, the commission found as follows:
We find that under the circumstances of
this case, the claimant was not able to
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engage in an extensive marketing effort. He
has experience with only manual labor and
truck driving, neither of which are feasible
pursuits because of his back pain and
medications. His illiteracy prevents him
from obtaining a substantial number of light
duty employments. Because the employer
denied the claim, the claimant had no money
to fund his job search to more populated
communities, nor did he have any vocational
rehabilitation assistance. Given the
claimant's limitations and the paucity of
employment possibilities in his community, we
find that the claimant's minimal efforts are
sufficient and he is entitled to benefits
during his period of disability.
The commission considered the factors we set forth in
National Linen and its findings are amply supported by claimant's
testimony and the medical records. Accordingly, those findings
are conclusive upon us on appeal.
III.
"Without a referral from an authorized treating physician,
Code § 65.2-603(C) provides for treatment by an unauthorized
physician in an 'emergency' or 'for other good reason.'"
Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 212, 421
S.E.2d 483, 485 (1992).
[I]f the employee, without authorization but
in good faith, obtains medical treatment
different from that provided by the employer,
and it is determined that the treatment
provided by the employer was inadequate
treatment for the employee's condition and
the unauthorized treatment received by the
claimant was medically reasonable and
necessary treatment, the employer should be
responsible, notwithstanding the lack of
prior approval by the employer.
Id. at 212, 421 S.E.2d at 486.
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Contrary to claimant's assertions, no evidence in the record
established that Drs. Robert E. Briggs or Glenn J. Spiegler, the
authorized treating physicians, refused to treat claimant or that
their treatment was ineffective. Accordingly, we cannot find
that the commission erred in refusing to hold employer
responsible for the cost of unauthorized medical treatment
rendered by Drs. Poole and Decker and the Riverside Hospital
emergency room.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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