COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
CIRCUIT CITY STORES, INC. AND
LIBERTY MUTUAL INSURANCE COMPANY
OPINION BY
v. Record No. 0294-98-1 JUDGE LARRY G. ELDER
SEPTEMBER 29, 1998
RAYMOND SCOTECE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Ferrell Newman (Thompson, Smithers,
Newman & Wade, on brief), for appellants.
No brief or argument for appellee.
Circuit City Stores, Inc., and Liberty Mutual Insurance
Company (collectively "employer") appeal an order of the Workers'
Compensation Commission ("commission") rejecting employer's
application for a hearing based upon a change in condition and to
suspend benefits previously awarded to Raymond Scotece
("claimant"). Employer contends the commission erred when it
concluded that the supporting documentation filed with employer's
application failed to establish probable cause to believe
employer's claims were meritorious. For the reasons that follow,
we affirm.
I.
FACTS
In 1994, claimant suffered a compensable back injury.
Claimant and employer subsequently executed a memorandum of
agreement providing claimant with medical and temporary total
disability benefits. Employer compensated claimant pursuant to
their agreement until September 30, 1997.
On September 30, 1997, employer filed an application
alleging a change in condition with the commission. In the
application, employer requested the suspension of claimant's
benefits on two grounds: (1) "[claimant's] current disability is
unrelated to the industrial accident," and (2) "[c]laimant has
been removed from the job market for reasons unrelated to his
compensable accident." In support of its first ground of relief,
employer designated a letter from Dr. Bruce I. Tetalman,
claimant's treating physician for pain management but not his
back injury. In the letter, dated July 24, 1997, Dr. Tetalman
stated that claimant's work-related injury had reached maximum
medical improvement and that he "can work in above sedentary
capacity." Dr. Tetalman set forth several restrictions for any
work performed by claimant. Dr. Tetalman also noted that
claimant "appears to have apparent psychiatric problems that are
unrelated to the work injury and that may impact upon his ability
to work at these capacities."
Regarding its second ground of relief, employer designated a
letter from Joyce W. Conner, a vocational counselor for CorVel
Corporation, as the supporting documentation. In her letter,
dated September 2, 1997, Ms. Conner stated that employer had
contacted her regarding claimant. She stated that they
previously had concluded "it would not be reasonable to pursue
vocational rehabilitation placement efforts for [claimant] based
2
on his unrelated psychiatric condition." She stated she recently
spoke to an employer who stated "they might possibly be able to
consider [claimant]" if his work hours were increased. Ms.
Conner concluded her letter by stating "it is unfortunate that
[claimant] is unable to participate actively in job search
placement efforts."
A senior claims examiner found no probable cause justifying
a suspension of claimant's benefits and refused to docket
employer's application for a hearing. Employer appealed the
claims examiner's determination, and the full commission
affirmed. The commission reasoned that, even if claimant's
psychiatric problems were unrelated to his compensable injury,
none of employer's supporting documentation tended to prove that
claimant's continuing disability was unrelated to his compensable
injury or that claimant had refused to participate in vocational
rehabilitation.
II.
PROBABLE CAUSE TO JUSTIFY HEARING EMPLOYER'S APPLICATION
Employer argues that the commission erred when it concluded
that the letters written by Dr. Tetalman and Ms. Conner were
insufficient to establish probable cause that either of its
grounds for relief was meritorious. We disagree.
This case involves the application of the commission's
prehearing procedural rules. Under Commission Rule 1.4(A) and
(B), an employer's application for hearing based upon a change in
3
condition must be in writing and under oath and must state the
grounds for relief and the date for which compensation was last
paid. In addition, the employer must designate and send to the
employee copies of the documentation supporting its application.
See Commission Rule 1.4(A). Under Commission Rule 1.5(A), the
commission is required to review the employer's application for
compliance with the Workers' Compensation Act and the
commission's rules. At this preliminary stage, whether an
employer is entitled to a suspension of benefits and to a hearing
on the merits of its application hinge upon whether its
application is "technically acceptable." See Commission Rule
1.5(C).
The decisions of the commission since Rules 1.4 and 1.5
became effective in 1994 indicate it has interpreted its
prehearing procedural rules to include a test that previously was
stated expressly in its former Rule 13. An employer's
application for hearing will be deemed not "technically
acceptable" and will be rejected unless the employer's designated
supporting documentation is sufficient to support a finding of
probable cause to believe the employer's grounds for relief are
1
meritorious. See, e.g., Mixon v. Bay Area Movers & Storage,
1
Employer does not contend that this interpretation of the
commission's rules regarding the prehearing disposition of an
employer's application is unreasonable. See Specialty Auto Body
v. Cook, 14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992)
(stating that the commission's interpretation of its rules "'will
not be set aside unless arbitrary and capricious'").
4
Inc., VWC File No. 169-52-56 (Va. Workers' Comp. Comm'n Apr. 21,
1997); Robinson v. Dynalectric, VWC File No. 170-12-48 (Va.
Workers' Comp. Comm'n June 13, 1996); Sadoff v. Mary's Flower
Shop, VWC File No. 167-44-65 (Va. Workers' Comp. Comm'n Apr. 19,
1995); Graham v. Consolidated Stores Corp., VWC File No.
161-81-78 (Va. Workers' Comp. Comm'n Sept. 29, 1994). 2 The
commission has defined the standard of "probable cause" as "[a]
reasonable ground for belief in the existence of facts warranting
the proceeding complained of." Mixon, VWC File No. 169-52-56
(quoting Black's Law Dictionary 1081 (5th ed. 1979)).
Applying these rules to this case, we hold that the
commission did not err when it affirmed the claims examiner's
conclusion that the supporting documentation designated by
employer was insufficient to support a finding of probable cause
to believe that either of employer's grounds for relief was
meritorious. First, Dr. Tetalman's letter of July 24, 1997 does
2
The relevant portion of former Rule 13 stated:
All applications by an employer or insurer
shall be under oath and shall not be deemed
filed and benefits shall not be suspended
until the supporting evidence which
constitutes a legal basis for changing the
existing award shall have been reviewed by
the Commission, or such of its employees as
may be designated for that purpose, and a
determination made that probable cause exists
to believe that a change in condition has
occurred.
Dillard v. Industrial Comm'n of Va., 416 U.S. 783, 790 n.9, 94
S. Ct. 2028, 2033 n.9, 40 L. Ed. 2d 540 (1974) (quoting former
Commission Rule 13).
5
not support employer's allegation that claimant's "current
disability is unrelated to the industrial accident." In fact,
Dr. Tetalman's opinion supports the opposite conclusion. He
opined that claimant was still partially disabled and that this
disability was "[b]ased on the work-related injury." Although
the doctor also opined that claimant "appears to have apparent
psychiatric problems that are unrelated to the work injury,"
nothing in his letter tends to prove that these psychiatric
problems prevented claimant from returning to light duty
employment. Instead, the doctor merely opined that these
problems "may impact" claimant's ability to work. It is well
established that "[a] medical opinion based on a 'possibility' is
irrelevant [and] purely speculative." Spruill v. Commonwealth,
221 Va. 475, 479, 271 S.E.2d 419, 421 (1980).
In addition, Ms. Conner's letter failed to provide any
evidentiary support for employer's allegation that "[c]laimant
has been removed from the job market for reasons unrelated to his
compensable accident." Although Ms. Conner stated "it would not
be reasonable to pursue vocational rehabilitation placement
efforts for [claimant] based on his unrelated psychiatric
condition," her letter does not indicate how she could
competently conclude that claimant's "psychiatric problems"
prevented him from participating in vocational rehabilitation.
Even if Ms. Conner had read Dr. Tetalman's letter, the doctor's
letter provided no support for the conclusion that claimant's
6
psychiatric problems actually affected his ability to work at the
restricted level approved by the doctor. Furthermore, none of
employer's designated supporting documentation indicated the
nature of claimant's psychiatric problems. The commission held
that it could not accept a vocational rehabilitation worker's
opinion as medical evidence of claimant's psychological
condition. Regardless of her qualifications to render such an
opinion, Ms. Conner could not have assessed the disabling effect
of claimant's unknown psychiatric problems on his fitness for
vocational rehabilitation without resorting to speculation
regarding the nature of these problems. Furthermore, credible
evidence supports the commission's finding that "[u]ntil
vocational rehabilitation is actually offered to the claimant, he
has not refused to participate in vocational rehabilitation."
For the foregoing reasons, we affirm the decision of the
commission.
Affirmed.
7