Abdel Khalik Al-Mashandani v. Coca Cola Enterprises, Inc. and Cigna Fire Underwriters Insurance Co.
This text of Abdel Khalik Al-Mashandani v. Coca Cola Enterprises, Inc. and Cigna Fire Underwriters Insurance Co. (Abdel Khalik Al-Mashandani v. Coca Cola Enterprises, Inc. and Cigna Fire Underwriters Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Haley and Senior Judge Willis
ABDEL KHALIK AL-MASHADANI MEMORANDUM OPINION * v. Record No. 0681-09-4 PER CURIAM SEPTEMBER 8, 2009 COCA COLA ENTERPRISES, INC. AND CIGNA FIRE UNDERWRITERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Eric S. Wiener, on briefs), for appellant. Appellant submitting on briefs.
(Brandi R. Howell; Franklin & Prokopik, P.C., on brief), for appellees. Appellees submitting on brief.
Abdel Khalik Al-Mashadani (claimant) appeals a decision of the Workers’ Compensation
Commission finding that he failed to establish he suffered a back injury as a result of a March
18, 2006 workplace accident, that he suffered an abdominal contusion rather than a serious
abdominal injury, and that he was not entitled to any wage loss benefits after April 10, 2006
because he failed to market his residual work capacity. Finding the commission’s conclusions
supported by the evidence, we affirm the commission’s decision.
BACKGROUND
Claimant worked in a warehouse as a “pallet builder” for Coca Cola Enterprises, Inc.
(employer). He was responsible for operating a pallet jack. The pallet jack has a steering
mechanism similar to that of a bicycle.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. On March 18, 2006, claimant was operating the pallet jack when the vehicle hit a puddle
of water. Claimant lost control of the vehicle, it tipped over, and the steering mechanism struck
the right side of his abdomen. Several co-workers witnessed the accident. Appellant
immediately notified his supervisor.
On March 21, 2006, claimant visited an emergency care center and was diagnosed with
an abdominal contusion and was released to return to work on March 24, 2006. On March 24,
2006, claimant visited Dr. Antonio Usman complaining of an injury to his abdomen and rib cage,
and was again diagnosed with an abdominal contusion. Dr. Usman instructed claimant to
perform light-duty work from March 24 through April 10, 2006, and return to full-duty work on
April 11, 2006. After several additional doctors’ visits for pain in the abdomen and pelvis,
appellant received a MRI on June 26, 2006. The MRI revealed disc bulges in two areas of
claimant’s back. Claimant was diagnosed with lumbar degenerative disc disease, lumbar
radiculopathy, and lumbar spondylosis.
At a hearing before the commission, employer stipulated that claimant sustained a
compensable abdominal injury. The commission found that claimant’s medical records did not
sufficiently document a back injury and that claimant did not sustain his back injury as a result of
the workplace accident. The commission awarded him temporary total disability benefits from
March 18, 2006 through March 23, 2006, and temporary partial disability benefits from March
24, 2006 through April 10, 2006. This appeal followed.
II. ANALYSIS
Claimant asserts he sustained abdominal, pelvic, and back injuries when he was struck in
his mid-section by the steering mechanism of the pallet jack on March 18, 2006. He contends
the commission erred in concluding he failed to establish that his back was injured during the
workplace accident. “[T]he commission’s determination regarding causation is a finding of
-2- fact.” Tex Tech Indus., Inc. v. Ellis, 44 Va. App. 497, 504, 605 S.E.2d 759, 762 (2004). “If
there is 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).
Credible evidence supports the commission’s conclusion that claimant failed to establish
that his back injury was caused by the March 18, 2006 workplace accident. At a hearing before
the commission, warehouse manager William A. Hester, III, explained that the machine handle
on the pallet jack is spring loaded, and returns to a horizontal position when it is released, thus
making it impossible for claimant to have been struck in both the abdomen and back by the
steering handle. Employee relations manager Cindy Maldonado also testified that when claimant
notified her of the accident, he told her he had injured the right side of his abdomen. He did not
state that the pallet jack struck him more than once, and he did not report a back injury. At a
hearing before the commission, claimant admitted he received no treatment for his back pain
prior to June 2006, three months after the accident. Although Drs. Benjamin Kittredge and
Abraham Cherrick attributed claimant’s back pain to his workplace injury, the commission
determined the doctors were given an incomplete and inaccurate medical history, and afforded
their opinions little weight. Based upon this evidence, we will not disturb the commission’s
findings on appeal.
Claimant next contends the commission erred in concluding he suffered an abdominal
contusion rather than a serious abdominal injury. The medical records from Inova Emergency
Care Center, Dr. Usman of Virginia Medical Acute Care, and internist Dr. Allen Terlinsky
classified claimant’s injury as an abdominal contusion. Therefore, credible evidence supports
the commission’s finding of fact that appellant suffered an abdominal contusion rather than a
more serious abdominal injury.
-3- Claimant next contends the commission erred in concluding he was not entitled to the
entirety of lost wages he incurred. “[A] party seeking workers’ compensation bears the burden
of proving his disability and the periods of that disability.” Marshall Erdman & Assocs. v.
Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149-50 (1997).
Claimant was unable to work from March 18 through March 23, 2006. He was released
to light-duty work from March 24, 2006 through April 10, 2006 and worked for employer during
that time. On May 4, 2006, Dr. Esam Omeish instructed claimant to perform normal activities as
tolerated, and on June 30, 2006, that release clarified that claimant could perform his full duties.
Because claimant was released to perform full duty work prior to the August 30, 2006 work
restrictions issued by Dr. Kittredge, we cannot conclude the commission erred in denying
claimant wage benefits from April 11 through August 30, 2006.
Claimant also argues that he had no duty to market his residual work capacity from
August 30 through September 15, 2006 because his work restrictions were not solely related to
his non-compensable back injury. Although Dr. Kittredge noted appellant’s complaints of hip
pain in his August 30, 2006 report, Dr. Kittredge did not identify a medical reason for claimant’s
hip pain, and ordered additional testing. Dr. Kittredge did, however, order steroid injections to
address claimant’s back pain. From this evidence, the commission concluded that
Dr. Kittredge’s order for claimant to remain out of work was based upon his assessment of
claimant’s back injury on August 30, 2006. Because we have previously concluded there is
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