ARA Services v. Swift

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Salem, Virginia

ARA SERVICES AND RELIANCE
INSURANCE COMPANY

v. Record No. 0412-95-3 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
SHERRY L. SWIFT APRIL 2, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John C. Johnson (Melissa Warner Scoggins;
Gentry, Locke, Rakes & Moore, on brief), for
appellants.

Rhonda L. Overstreet (Gary L. Lumsden, on
brief), for appellee.

In this workers' compensation case, ARA Services and its

insurer, Reliance Insurance Company (collectively referred to as

employer), appeal the commission's decision awarding benefits to

Sherry L. Swift (claimant). Employer argues that the commission

erred in: (1) finding that claimant reasonably and adequately

marketed her residual work capacity by accepting offered part-

time employment with employer, and (2) requiring employer to

provide claimant with a home exercise station. For the reasons

that follow, we affirm the commission's decision.

Claimant injured her left arm and shoulder on December 20,

1991, while working for employer as a route driver. Her job

involved lifting items weighing up to seventy-five pounds.

Employer accepted the claim as compensable and paid benefits from

January 29, 1992 to March 30, 1992.
 Claimant returned to her pre-injury employment on March 30,

1992, with no restrictions. After a week or two, claimant was

unable to continue. Employer then reassigned claimant to light-

duty work as a vending machine attendant, a position that

involved less lifting. In her pre-injury employment, claimant

worked forty hours per week and earned $6.25 per hour. In the

light-duty position, claimant worked twenty-five hours per week

and earned $6.80 per hour.
In a December 10, 1992 report, Dr. Andrew J. Cepulo,

claimant's treating physician, stated: "The patient is to obtain

exercise equipment for home use. We reviewed some specific

muscles that need to be strengthened, and stretched . . . ." On

February 4, 1993, Dr. Cepulo again emphasized the importance of

claimant "increasing [the] frequency of stretching to deal with

acute exacerbations" of her work-related injury. Dr. Cepulo also

placed lifting restrictions on her work ability but did not

restrict her hours. In a November 8, 1993 report, Dr. Cepulo

continued the lifting restrictions, occasional lifting of over

fifty pounds and frequent lifting of thirty to forty pounds, but

again did not limit claimant's hours. Dr. Cepulo prescribed a

home exercise station "to allow upper [and] lower extremity home

strengthening program to reduce pain," and approved additional

treatment from Dr. Laura Liles, an osteopathic physician. Dr.

Liles prescribed a treadmill for claimant "to be able to walk

daily, regardless of weather, to work on chronic cervical

2
strain." Claimant purchased the home exercise station for

$208.99 and placed it in her home.

Claimant filed an application for change in condition by

letter on December 16, 1993, January 31, 1994, and June 7, 1994.

Claimant requested temporary partial disability benefits

beginning September 18, 1993; reimbursement for the home exercise

station prescribed by Dr. Cepulo; and provision of a treadmill as

prescribed by Dr. Liles. In awarding claimant benefits, the

commission found that: (1) claimant adequately marketed her

residual work capacity by accepting part-time employment offered

by employer because she would have been subject to termination if

she had refused the light-duty position; and (2) the home

exercise station was reasonable and necessary for claimant's

recovery. Her request for the treadmill was denied.
MARKETING OF RESIDUAL WORK CAPACITY

Employer argues that claimant did not reasonably and

adequately market her remaining residual capacity because she

accepted part-time light-duty employment offered by employer and

failed to obtain full-time employment elsewhere.

On appeal, this Court reviews "the evidence in the light

most favorable to the prevailing party." R.G. Moore Bldg. Corp.

v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

"Factual findings of the . . . [c]ommission will be upheld on

appeal if supported by credible evidence." James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

3
(1989).

A partially disabled employee "must make a reasonable effort

to market his remaining capacity to work in order to continue

receiving workers' compensation benefits." Virginia Wayside

Furn., Inc. v. Burnette, 17 Va. App. 74, 78, 435 S.E.2d 156, 159

(1993). "What constitutes a reasonable marketing effort depends

upon the facts and circumstances of each case." Greif Companies

(GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318

(1993). In National Linen Service v. McGuinn, 8 Va. App. 267,
380 S.E.2d 31 (1989), we identified six factors that the

commission must consider in determining whether an employee has

reasonably and adequately marketed his or her remaining work

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 [her] job
search; (5) the availability of jobs in the
area suitable for the employee, considering
[her] disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.

Id. at 272, 380 S.E.2d at 34 (footnotes omitted).

The commission must also consider "whether the employee

cooperated with the employer and if the employer availed itself

of its opportunity to assist the claimant in obtaining

employment." Id. at 272 n.5, 380 S.E.2d at 34 n.5. If an

injured employee unjustifiably refuses selective employment

offered by the employer, he or she is "no longer entitled to

4
receive disability compensation during the continuance of the

refusal." Virginia Wayside Furn., 17 Va. App. at 78, 435 S.E.2d

at 159; Code § 65.2-510(A). 1

In the instant case, claimant promptly returned to her pre-

injury employment but was physically unable to continue her

earlier duties. Employer then offered claimant a light-duty

position and reassigned her. The commission expressly found

that, "[i]f the claimant had refused this job, she would have

been subject to a termination of benefits for refusing suitable

employment." We agree and hold that, under the circumstances in

this case, claimant acted reasonably in accepting the part-time

light-duty employment offered by her pre-injury employer and

adequately marketed her residual work capacity.
Employer mistakenly relies on this Court's holding in

National Linen that mere employment is "insufficient proof of

making a reasonable effort to market one's remaining work

capacity." See 8 Va. App. at 268, 380 S.E.2d at 32. When the

claimant in National Linen was able to return to work, he did not
seek employment with his pre-injury employer, and his former
1
Code § 65.2-510(A) provides as follows:

If an injured employee refuses employment
procured for him suitable to his capacity, he
shall only be entitled to the benefits
provided for in §§ 65.2-503 and 65.2-603,
excluding vocational rehabilitation services
provided for in subdivision A 3 of §
65.2-603, during the continuance of such
refusal, unless in the opinion of the
Commission such refusal was justified.

5
employer did not offer him employment. The claimant accepted

employment with his father, not his pre-injury employer, and made

no efforts to seek employment elsewhere. Id. at 269, 380 S.E.2d

at 32.

In the instant case, claimant returned to her pre-injury

employment. When she was unable to perform the job because of

the lifting involved, employer offered her light-duty employment.

Claimant accepted in good faith the light-duty position offered

by her pre-injury employer, and no evidence in the record shows

that she was told to seek additional employment. Under Code
§ 65.2-510(A), if claimant had refused the position, her right to

benefits could have been terminated. Under these circumstances,

credible evidence supports the commission's determination that

claimant reasonably and adequately marketed her residual work

capacity.
MEDICALLY NECESSARY HOME APPLIANCE

Employer next argues that the home exercise station was not

reasonable and necessary for claimant's recovery. Employer

denies responsibility for claimant's total body conditioning when

her work-related injury was a strained left arm.

Code § 65.2-603(A)(1) provides in pertinent part as follows:
[U]pon determination by the treating
physician and the Commission that the same is
medically necessary, the Commission may
require that the employer furnish and
maintain wheelchairs, bedside lifts,
adjustable beds, and modification of the
employee's principal home consisting of
ramps, handrails, or any appliances
prescribed by the treating physician and

6
 doorway alterations.

(Emphasis added).

In this case, the commission found that the home exercise

station was reasonable and necessary. Dr. Cepulo, claimant's

treating physician, prescribed the exercise equipment "to allow

upper [and] lower extremity home strengthening program to reduce

[claimant's] pain" associated with her work-related injury. Dr.

Cepulo also emphasized the importance of claimant "increasing

[the] frequency of stretching to deal with acute exacerbations"

of her injury. Code § 65.2-603(A)(1) does not limit "appliances

prescribed by the treating physician" to those that constitute

structural modifications of a claimant's home and may include

medically necessary exercise equipment. Because credible

evidence in the record shows that the exercise equipment was

"medically necessary" for treatment of claimant's work-related

injury, the commission did not err in ordering employer to

reimburse claimant.
Accordingly, the decision of the commission is affirmed.

Affirmed.

7