Food Lion, LLC and Delhaize America, LLC v. Joyce Toehlke

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and Senior Judge Frank
UNPUBLISHED

Argued by teleconference

FOOD LION, LLC AND
DELHAIZE AMERICA, LLC
MEMORANDUM OPINION* BY
v. Record No. 1507-19-1 JUDGE GLEN A. HUFF
APRIL 14, 2020
JOYCE TOEHLKE

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Steven H. Theisen (Midkiff, Muncie & Ross, P.C., on brief), for
appellants.

Philip J. Geib (Philip J. Geib, P.C., on brief), for appellee.

Food Lion, LLC and Delhaize America, LLC (“employer”) appeal an award for worker’s

compensation benefits to Joyce Toehlke (“claimant”) by the Virginia Workers’ Compensation

Commission. Employer raises four assignments of error. First, employer contends that the

Commission erred by finding claimant provided timely notice of the alleged accident. Second,

employer claims the Commission’s finding that claimant sustained an injury by accident was

error because claimant failed to prove the accident actually occurred. Third, employer claims the

Commission erred by finding claimant’s injury and medical treatment were caused by the alleged

accident. Finally, employer claims the Commission erred by awarding continuing total

temporary disability benefits because claimant failed to establish her disability was permanent or

ongoing. Because there is credible evidence in the record supporting each of the Commission’s

findings, this Court affirms.

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
 I. BACKGROUND

“Under settled principles of appellate review, we consider the evidence in the light most

favorable to [claimant] as the prevailing party before the commission.” Layne v. Crist Elec.

Contractor, Inc., 64 Va. App. 342, 345 (2015). So viewed, the evidence shows that claimant began

working at Food Lion as a specialty merchandise associate in January 2014. On or about December

1, 2014,1 claimant was standing on a step stool around seven feet in the air while reaching overhead

to retrieve a tote filled with merchandise. The tote was heavier than she anticipated, causing her to

fall off the step stool. She testified: “I just remember my arms and everything jolting, and my left

knee hit the concrete and my right foot was still kind of tangled up in the stepstool.”

Soon after, claimant reported the accident to her supervisor, assistant store manager Sharon

Halligan. Claimant did not remember if she reported it to Halligan on the same day or a couple of

days later. Claimant told Halligan that she had fallen off the step stool and that her hips, lower

back, neck, and knee were hurting as a result. She told Halligan she planned to go to her hip doctor

since she had a pre-existing hip problem and didn’t know if she was experiencing back pain or hip

pain. Halligan recalled speaking to claimant about the accident around that same time. According

to Halligan, she followed protocol and completed an accident report shortly after claimant told her

about the accident.

Claimant sought treatment from Dr. Campbell, her hip doctor, on December 8, 2014.

However, an insurance issue prevented her from being seen then. While at Dr. Campbell’s office,

claimant completed a patient information form where she listed that the injury had occurred

“months ago.” When asked whether the injury was work related, she wrote, “pre-existing/work has

made it worse.” She also completed a new ailment report while at Dr. Campbell’s office. She

1
Claimant is not sure the exact date the incident occurred. She testified that it happened
a few days before or after December 1, 2014. Hereinafter, it will be referred to as the
“December 1, 2014 accident.”
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described her symptoms as “left lower back pain, hip also feels weak, hurts and goes down my leg

and foot, numbness and needles, cramping bad/worse when I stand or walk.” She wrote that her

symptoms first appeared “months ago” and that it “just keeps getting worse.”

On December 15, 2014, claimant had an appointment with Dr. Goldberg, a neurologist

whom she saw regularly for neck pain, migraines, and occasional low back pain. No mention is

made of the December 1, 2014 accident in Dr. Goldberg’s report. According to claimant, however,

she told Dr. Goldberg about the accident during the visit. He later diagnosed her with “lumbosacral

radiculopathy with recurrent symptomatology or primary left hip issue . . . .” Dr. Goldberg

recommended that claimant find a job that did not require lifting. A couple of weeks later, claimant

resigned from Food Lion. She then worked at Tidewater Fleet Supply for approximately one and a

half years, earning a higher wage than she did at Food Lion.

On March 19, 2015, claimant was treated by Dr. Campbell. His office notes reflect that she

complained of left hip pain that was sudden onset after an “injury which occurred around 11/2014

while climbing down a ladder carrying a heavy tote, she reports her leg gave way when she stepped

off the ladder.” Later, Dr. Goldberg referred claimant to Dr. Levi, a physiatrist, for pain

management. On July 9, 2015, Dr. Levi’s physician’s assistant noted that claimant complained of

eight months of “left side dominate low back pain” that was acute onset “after she was lifting a

heavy tote and fell forward.” The physician’s assistant further noted that “in November, she was

lifting a heavy tote off of a shelf that was above her head. She fell forward. Patient developed left

side dominant lower back pain and paresthesia in the left leg. She also notes re[-]aggravation of her

left groin pain.”

Dr. Levi referred claimant to Dr. Laurent, a back surgeon. At some point, claimant called

her former Food Lion supervisor, Halligan, and informed Halligan about her scheduled surgery,

mentioning that she believed the injuries were related to the December 1, 2014 accident at Food

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Lion. Dr. Laurent performed surgery on claimant’s back on January 19, 2016, from which

claimant suffered vascular complications. On April 16, 2016, Dr. Laurent completed a

questionnaire where he stated that claimant’s lumbar radiculopathy and subsequent surgery was

proximately related to her work accident. In his August 30, 2016 letter, Dr. Laurent continued to

causally relate claimant’s injury and disability to the work accident. He considered the

inconsistencies in the records and stated that the signs of a back injury will often manifest

themselves initially as a hip injury, explaining why claimant originally thought her pain could be

from her pre-existing hip injury. He also stated that “if the conditions of Ms. Toehlke’s spine

had been present prior to December 1, 2014, this patient would have likely exhibited significant

difficulties and clinical complaints of a profound nature.”

Claimant continued to have difficulties after the surgery. She required a walker to

ambulate and had “significant limitation” on “how long she can stand and walk.” On June 1,

2016, Dr. Laurent restricted claimant from performing any duty and stated “patient will not be

returning to work.” A month later he noted that claimant had tried to return to work but could

not “tolerate the long sitting” required, and he stated that “I do not think it would be a good idea

for her to return to work as she is unable to tolerate what is required at that job and to be honest I

cannot think of a position right now, which she would be suited for with her current disabilities.”

Moreover, in a November 30, 2016 report, Dr. Laurent opined that claimant “is likely to have a

level of permanent disability.” She continued to see Dr. Laurent and began treating with

Dr. Gershon to manage her pain. In June of 2017, claimant had “been stable over the past 6

months,” but was still using a walker for ambulation.” A year later, in June of 2018,

Dr. Gershon noted that claimant continued on “No Duty” “Per Dr. Laurent.”

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 Claimant filed multiple Virginia Workers’ Compensation claims, beginning on January 7,

2016.2 She alleged injuries to her lower back, left hip, and cervical spine/neck because of the

December 1, 2014 accident. The insurance adjuster for employer first became aware of the

accident on December 11, 2015.

At the hearings, claimant withdrew her claims related to her left hip and cervical spine/neck.

In an opinion issued on September 17, 2018, Deputy Commissioner Wilder denied the remaining

claims, finding she had not proved she sustained a compensable injury by accident or that she

provided timely notice of her injury. The deputy commissioner based this finding on the lack of

documentation mentioning the incident in any of claimant’s medical records prior to March 9, 2015,

and the lack of evidence that employer was made aware of the incident within a reasonable time.

Claimant requested review of the decision, and the full Commission reversed in a January

28, 2019 opinion, remanding the case to address claimant’s wage loss claim and employer’s

remaining defenses. The full Commission found that claimant’s testimony, along with the

testimony of her former supervisor Sherry Halligan, proved by a preponderance of the evidence that

claimant had given employer notice of the accident within thirty days, making it timely. On

remand, Deputy Commissioner Wilder found that claimant had proven she sustained injuries to her

lower back and left hip in the December 1, 2014 accident and entered a medical award. The deputy

commissioner also found that claimant proved entitlement to temporary total disability benefits for

December 23, 2014 through January 1, 2015; January 19, 2016 through March 6, 2016; and

beginning June 1, 2016.

On May 15, 2019, the employer requested review of Deputy Commissioner Wilder’s

decision. In its August 21, 2019 opinion, the full Commission declined to reconsider the findings

2
Claimant filed claims dated January 7, 2016, March 22, 2016, March 23, 2016, May 26,
2016, June 21, 2016, June 23, 2016, August 11, 2016, and December 9, 2016.
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that claimant had provided timely notice and sustained a compensable injury. However, it reversed

the finding regarding an injury sustained to the left hip and the subsequent medical award, since that

claim had been withdrawn previously and was not properly before the deputy commissioner. It also

modified the award of disability benefits, overturning the award for December 23, 2014 through

January 1, 2015, thus limiting the total disability benefits to the periods of January 19, 2016 through

March 6, 2016, and from June 1, 2016, until conditions justify a modification thereof. This appeal

followed.

II. STANDARD OF REVIEW

This Court views the evidence “in the light most favorable to the prevailing party before

the commission.” Clifton v. Clifton Cable Contr., LLC, 54 Va. App. 532, 536 (2009). This

Court is “bound by the commission’s factual findings supported by credible evidence, despite the

fact that there may be evidence to support a contrary finding.” Hoffman v. Carter, 50 Va. App.

199, 209 (2007). “In determining whether credible evidence exists, [this C]ourt 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 (1991).

“The scope of a judicial review of the fact finding function of a workers’ compensation

commission, therefore, is severely limited, partly in deference to the agency’s expertise in a

specialized field.” Southside Virginia Training Ctr. v. Ellis, 33 Va. App. 824, 828 (2000)

(quoting Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 4 (2000)).

III. ANALYSIS

Employer makes four arguments attacking the evidence in support of the Commission’s

findings. First, it argues that claimant failed to establish she provided timely notice to the

employer of her accident. Second, it argues claimant failed to establish that she suffered an

injury by accident because she did not establish that the accident occurred. Third, employer

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argues the evidence does not support the Commission’s finding that the accident caused

claimant’s injuries. Finally, it argues that even if claimant established her entitlement to some

compensation, the Commission erred because there was insufficient evidence of an ongoing

injury to warrant continuing compensation. Because credible evidence supports each of the

Commission’s findings, this Court affirms.

A. Notice

Code § 65.2-600 requires an employee to provide notice within thirty days after the

occurrence of an accident. “However, if a reasonable excuse is made to the satisfaction of the

commission, and the commission is satisfied that the employer has not been prejudiced,

compensation may be paid even if notice is not timely given.” Westmoreland Coal Co. v.

Coffey, 13 Va. App. 446, 448 (1991). “Written notice is unnecessary if the employer has actual

notice through a foreman or other superior officer.” Goodyear Tire v. Rubber Co. v. Harris, 35

Va. App. 162, 171 (2001). “The notice must include the name and address of the employee, the

time and place of the accident, and the nature and cause of the accident and the injury.” Code

§ 65.2-600(B).

Claimant testified that she notified her supervisor of the accident and injury within a

couple of days of the December 1, 2014 occurrence, although she could not remember the exact

date. Claimant explained to her supervisor how she fell in the store and the pains she was

subsequently experiencing in her hips, neck, and knee. Claimant’s supervisor, Halligan, also

recalled the claimant telling her about falling from the step stool while retrieving the tote.

Employer argues that timely notice was not given because claimant never testified to the exact

date she reported the accident and because it was not reported to employer’s insurance carrier

until December 11, 2015.

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 The testimony of claimant and her supervisor provided credible evidence to support the

Commission’s finding that timely notice was given to employer. Claimant’s testimony that she

reported the accident within a couple of days is credible evidence that it was reported within the

thirty-day requirement. Halligan’s assertion that she remembered speaking to claimant about the

accident and filed an incident report shortly after is also credible evidence that notice was given.

Although the insurance carrier did not receive notice of the accident until December 11, 2015,

the employee is only required to provide notice to her employer. The claimant cannot be

penalized for the employer’s failure to report the accident to its insurance carrier. Solid Gold

Corp. v. Wang, 18 Va. App. 66, 69 (1994).

B. Injury by Accident

Employer argues the Commission erred because claimant failed to prove she suffered an

injury by accident. Claimant must prove an injury by accident by establishing “(1) an

identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden

mechanical or structural change in the body; and (4) a causal connection between the incident

and bodily change.” Alexandria City Pub. Sch. v. Handel, 70 Va. App. 349, 354-55 (2019)

(quoting Hoffman, 50 Va. App. at 212). “The commission’s determination of whether a claimant

suffered ‘an “injury by accident” presents a mixed question of law and fact, because it involves

both factual findings and the application of law to those facts. The Commission’s factual

findings bind this Court as long as credible evidence supports them.’” Riverside Regional Jail

Authority v. Dugger, 68 Va. App. 32, 37 (2017) (quoting Van Buren v. Augusta Cty., 66

Va. App. 441, 446 (2016)). “In determining whether credible evidence exists, [this C]ourt does

not retry the facts, reweigh the preponderance of the evidence, or make its own determination of

the credibility of the witnesses.” Handel, 70 Va. App. at 354 (quoting Wagner Enters., 12

Va. App. at 894).

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 Employer does not challenge the evidence regarding any specific criteria for establishing

an injury by accident. Rather, employer argues that claimant failed to establish any of the

elements because she failed to prove that the accident actually occurred. It argues that claimant’s

testimony about the accident is inherently incredible because none of the medical records

mention the accident for several months after it allegedly occurred. It claims that it is

unbelievable that she would have known about the accident and failed to mention it several times

to physicians treating her shortly after the accident.

Employer relies on Walter Reed Convalescent Ctr./Virginia Health Servs. v. Reese, 24

Va. App. 328 (1997), to argue that claimant’s testimony is insufficient to support the

Commission’s finding that the accident occurred. See id. at 336 (“Based upon our review of the

record, we find claimant’s testimony inherently incredible and inconsistent with the medical

records, the counselling forms, and [the claimant’s supervisor]’s testimony. Absent claimant’s

testimony, no evidence established that the duties of the ward clerk job, as amended, fell outside

of claimant’s residual capacity.”). It argues that her testimony is not credible when her medical

records do not contain any mention of her having reported the accident to her physicians for

several months and she filled out an intake form at one doctor’s office indicating that her injury

occurred months before and was “pre-existing/work has made it worse.” Even if this Court were

to assume that claimant’s testimony, alone, is insufficient to support the Commission’s finding

that the accident occurred around December 1, 2014—because she made contradictory

statements on a medical intake form and her medical records lack any reference to the accident

for several months—claimant’s testimony is not the only evidence in support of the

Commission’s finding.

Reese is distinguishable from the case at bar. In Reese, the claimant’s supervisor

contradicted the claimant’s testimony on the disputed issue. Nothing else in the record, except

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the claimant’s testimony supported the Commission’s finding. Id. (“Absent claimant’s

testimony, no evidence established that the duties of the ward clerk job, as amended, fell outside

of claimant’s residual capacity.”).

In the instant case, claimant’s supervisor testified that she recalled claimant informing her

of the accident soon after it occurred. Even though neither claimant nor the supervisor can

remember exactly when claimant’s accident occurred, their testimony—together—is sufficient

evidence that it occurred. Credible evidence, therefore, satisfies each of the legal standards and

the Commission’s finding of an injury by accident is upheld.

C. Causation

Employer argues that the Commission erred in finding claimant’s injury was caused by

her fall at work. Specifically, it argues that none of the medical evidence, other than

Dr. Laurent’s report, establishes causation and that the Commission erred in relying on

Dr. Laurent’s report because he based his conclusion on a misunderstanding of the medical

records and incorrect medical history received from claimant. This Court disagrees.

“A determination by the Commission upon conflicting facts as to causal relationship is

conclusive and binding on appeal, absent fraud, when such finding is supported by competent,

credible evidence.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101 (1983). “Likewise, the

Commission’s conclusions upon conflicting inferences, legitimately drawn from proven facts,

are equally binding on appeal.” Id. “Causation is usually proven by medical evidence.” Clinch

Valley Med. Ctr. v. Hayes, 34 Va. App. 183, 192 (2000). “Though not necessarily conclusive,

‘the opinion of the treating physician is entitled to great weight.’” Berglund Chevrolet, Inc. v.

Landrum, 43 Va. App. 742, 753 n.4 (2004) (quoting H.J. Holz & Son, Inc. v. Dumas-Thayer, 37

Va. App. 645, 655 (2002)).

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 Nevertheless, “[a] finding of causation need not be based exclusively on medical

evidence.” Lee Cty. Sch. Bd. v. Miller, 38 Va. App. 253, 260 (2002). “The testimony of a

claimant may also be considered in determining causation, especially where the medical

testimony is inconclusive.” Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 176 (1996). “In

addition, the commission may rely upon circumstantial evidence in finding that an injury was

caused by a particular accident.” Marriott Int’l, Inc. v. Carter, 34 Va. App. 209, 215 (2001).

Here, the evidence supports the Commission’s finding that claimant’s fall caused her

back injury. First, claimant testified about how the pain began after the accident. Although she

acknowledged she had indicated on the December 8, 2014 intake form that she believed the

injury was “pre-existing/work has made it worse,” she explained that she wrote those words

because she thought it was a problem with her pre-existing hip injury. Second, Dr. Laurent

confirmed that a back injury like claimant suffered will often masquerade as a hip injury and that

her initial reports of the hip injury exacerbation were consistent with the back injury occurring in the

fall. He specifically attributed the back injury to claimant’s fall.

Employer claims that Dr. Laurent’s opinion, despite being the opinion of a treating

physician that is normally accorded greater weight, cannot support the Commission’s causation

finding. Relying on Sneed v. Morengo, Inc., 19 Va. App. 199, 205 (1994), employer argues that the

Commission was required to “refuse . . . to attribute any weight” to his opinion because his

causation opinion is based on inaccurate medical history. Employer’s reliance on Sneed is

misplaced. In Sneed, the Commission rejected opinions of doctors who attributed the employee’s

injuries to his work accident when those doctors were completely unaware of the employee’s

extensive medical history involving similar issues. This Court affirmed, concluding that

“[w]henever a physician’s diagnosis flows from an assumption that rests upon a faulty premise,

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such as misinformation provided by a claimant, the commission may refuse, and often will be

required to refuse, to attribute any weight to that opinion.” Id.

In the instant case, however, the Commission found that any inaccuracies in the medical

history Dr. Laurent relied on were not significant enough to undermine his conclusion.3 The

evidence supports his conclusion on causation and therefore the conclusion is binding on this Court.

See Clinch Valley Med. Ctr., 34 Va. App. at 193 (“The commission resolves conflicts in the

medical evidence, and its decision when based upon credible evidence is binding on this

Court.”).

D. Continuing Disability

Finally, employer argues that—even if the evidence establishes claimant is entitled to

some compensation—the Commission erred in awarding continuing disability benefits because

the evidence does not establish that claimant is permanently disabled. This Court disagrees.

“There is no presumption in the law that once a disability has been established, a claimant

will be assumed to remain disabled for an indefinite period of time.” Marshall Erdman &

Assocs., Inc. v. Loehr, 24 Va. App. 670, 679 (1997). “[A] party seeking [workers’]

compensation bears the burden of proving his disability and the periods of that disability.”

3
Employer identifies three inconsistencies in records Dr. Laurent relied on. First,
employer claims Dr. Campbell’s note that the injury happened “around 11/2014” is inconsistent
with claimant’s story. A record that the accident occurred in November of 2014 is a minor
inconsistency given that claimant stated that it occurred within a few days of December 1, 2014.
Second, employer argues that on December 8, 2014, claimant initially reported that her
injury was “months ago it just keeps getting worse” and that it was “pre-existing/work has made
it worse.” Nevertheless, Dr. Laurent opined claimant’s initial belief that her injury was related to
her pre-existing hip injury was a not uncommon misunderstanding for injuries of the type
claimant actually suffered.
Third, employer argues claimant later reported the accident date as “Dec. 1 ? 2015.”
Dr. Laurent concluded she meant December 1, 2014. That conclusion was consistent with the
next line of the same form, filled out in February of 2016, where she stated her symptoms had
been present for a “little over 1 year.”

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Hoffman, 50 Va. App. at 216 (quoting Loehr, 24 Va. App. at 679). Nevertheless, the

Commission’s conclusion that a claimant has a “a continuing disability is . . . also a question of

fact.” Id. “[F]indings of fact of the Workers’ Compensation Commission are conclusive on

appeal, provided they are supported by credible evidence.” Loehr, 24 Va. App. at 679.

The contrast between this case and Hoffman and Loehr explains why the Commission did

not err in finding claimant suffers from a continuing disability.

In Hoffman, this Court reversed an award based on a continuing disability when the only

evidence of a continuing disability was a note from a doctor “that read: ‘[n]o work until

condition resolves (may be permanent).’” The employee had suffered respiratory problems from

breathing dust on the job. He was treated for approximately two months, and the note was not

written until nine months after his last examination and several months before the hearing before

the deputy commissioner. Hoffman, 50 Va. App. at 217.

Similarly, in Loehr, this Court affirmed the denial of continuing disability benefits when

the only evidence of continuing disability was a letter from the employee’s doctor restricting the

employee to light duty that also stated the doctor would “progress [the employee] to full duties,”

as he “improved.” The letter was written ten months before the hearing before the deputy

commissioner and did not “indicate the last occasion upon which [the employee] had been

treated, how long the partial disability was expected to continue, or when, if ever, [the employee]

would receive additional medical evaluation.” 24 Va. App. at 680.

Unlike Hoffman and Loehr, in this case the evidence supports the Commission’s

conclusion that claimant’s disability was ongoing. First, on June 1, 2016, Dr. Laurent checked a

box that stated “no work at this time,” but also wrote “patient will not be returning to work.”

Moreover, on November 30, 2016, although Dr. Laurent referred claimant to a physical therapist

to see if she could move beyond a need for a walker, Dr. Laurent also specifically opined that it

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was “likely” claimant would have “a level of permanent disability.” He also noted that she had

not had any “significant neurologic gain” since he last saw her. In Loehr, there was an implicit

assertion the employee would recover, and, in Hoffman, the doctor stated a mere possibility of a

permanent injury. Here, in contrast, Dr. Laurent specifically stated that permanent disability was

likely.

Although Dr. Laurent’s opinions were older than those in Hoffman and Loehr at the time

of the hearing, his opinions remain probative and sufficient. Unlike Hoffman and Loehr, later

medical records demonstrate a continuation of the same symptoms, despite the fact that

Dr. Laurent had not specifically restated his opinion about the permanence of claimant’s

disability. Nine months after stating he expected a “level of permanent disability,” he noted that

claimant had merely been “stable” over the “past 6 months or so.” He also noted she still used a

walker for ambulation. Moreover, nearly a year later and only a few days before the hearing

before the deputy commissioner, Dr. Gershon noted that Dr. Laurent’s “no duty” restriction still

existed. Given that claimant underwent treatment for nearly two years after surgery and the

extended period over which claimant had shown no improvement,4 the Commission could

reasonably infer that claimant’s then present level of disability was the “level of permanent

disability” that Dr. Laurent opined was “likely.” Thus, the Commission did not err in awarding

continuing disability benefits.

IV. CONCLUSION

Each of the challenged findings by the Commission is supported by credible evidence.

Claimant’s and her supervisor’s testimony is sufficient to establish both that the accident

Significantly, part of claimant’s disability is her need of a walker for ambulation.
4

Although the record is silent as to whether a walker was used by claimant at the hearing,
employer conceded at oral argument that claimant was still using the walker at the June 4, 2018
hearing before the deputy commissioner. This is further evidence demonstrating the continuing
nature of her disability.
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occurred and that claimant timely provided notice of it to employer. Further, although there are

some inaccuracies in the medical history Dr. Laurent relied on in opining that the accident

caused claimant’s injury, none of the inconsistencies are significant enough to undermine his

ultimate conclusion. Finally, Dr. Laurent’s opinion that claimant was “likely” to suffer “a level

of permanent disability” was sufficient to support the Commission’s award of continuing total

temporary disability benefits when all the medical evidence since the opinion was consistent

with the underlying conclusion. Accordingly, this Court affirms.

Affirmed.

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