Brenda Sue Trail v. Rallys

• Court: Court of Appeals of Virginia
• Decided: October 15, 1996
• Docket: 1103963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

BRENDA SUE TRAIL MEMORANDUM OPINION * v. Record No. 1103-96-3 PER CURIAM OCTOBER 15, 1996 RALLY'S AND MANUFACTURERS ALLIANCE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Brenda Sue Trail, pro se, on brief).

(Richard D. Lucas; Carter, Brown & Osborne, on brief), for appellees.

Brenda Sue Trail contends that the Workers' Compensation

Commission erred in limiting her benefits to one week of

disability. She contends that she was entitled to receive

(1) compensation benefits for periods of partial incapacity

between September 16, 1994 and February 7, 1995; and (2) the cost

of medical treatment rendered to her after September 26, 1995 or

for any emergency room treatment. Upon reviewing the record and

the briefs of the parties, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the commission's

decision. Rule 5A:27.

I.

The commission found from the evidence that Trail had back

surgery in 1981 and continued to experience chronic back pain. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. On September 7, 1994, Trail suffered a compensable injury by

accident when she slipped on a wet floor and fell onto her left

buttock. An emergency room physician diagnosed her injury as a

contused left buttock.

On September 12, 1994, Trail began treatment with Dr. Hetzal

Hartley, who diagnosed her injury as a contused left hip and an

acute low back strain. Dr. Hartley excused Trail from her pre-

injury job as a fast food prep worker from September 12, 1994

through September 16, 1994. On September 16, 1994, Dr. Hartley

released Trail to "modified duty" not involving lifting more than

twenty pounds or bending to the floor. On September 30, 1994,

Dr. Hartley noted that Trail's pain had subsided and released her

to full duty. In November 1994, Trail returned to Dr. Hartley, complaining

of recurrent back pain. Dr. Hartley diagnosed Trail as having

recurrent low back strain and placed her on "modified duty." Dr.

Hartley continued to treat Trail, placing her on light-duty

status until December 28, 1994, when he again released her to

full duty because her low back pain had subsided. On January 3,

1995, after Trail again complained of pain, Dr. Hartley placed

Trail on light duty and ordered an MRI. On February 7, 1995, Dr.

Hartley again released Trail to full duty. He reiterated his

decision to release Trail on February 23, 1995 and March 1, 1995.

Dr. Hartley referred Trail to Dr. Murray Joiner, a physiatrist.

Dr. Joiner diagnosed Trail as suffering from pain/piriformis

2 syndrome, left lower extremity sciatica, and a pre-existing

unrelated disk defect. Dr. Joiner treated Trail with various

conservative modalities and also referred her to two

neurosurgeons, Dr. James M. Vascik and Dr. Ward W. Stevens.

Neither Dr. Vascik nor Dr. Stevens viewed Trail as a surgical

candidate. Instead, both doctors recommended that she continue

under Dr. Joiner's conservative care.

Trail repeatedly sought treatment at the hospital emergency

room for subjective complaints of pain. Emergency room personnel

advised her to follow up with Dr. Joiner. Dr. Joiner noted that

he could not find any medical reason for Trail's multiple

emergency room visits, and he concluded that Trail was a "symptom

magnifier." His conclusions were based upon her benign physical

examination and the absence of any findings on objective testing.

On September 26, 1995, Dr. Joiner released Trail to full duty.

He reported "no medical explanation for her ongoing complaints"

and "no reason for ongoing medical intervention." Dr. Joiner

opined that Trail's complaints and her apparent psychological

problem were unrelated to her compensable injury. After Dr. Joiner released Trail, she continued to seek

treatment at the emergency room. As a result of one of these

visits, Trail was referred to Dr. Thomas Shuler, an orthopedist.

On October 30, 1995, Dr. Shuler indicated that he did not find

any "orthopedic surgical problem."

On January 15, 1996, Dr. Joiner indicated that Trail had

3 received "the full [gamut] of treatment intervention including

passive physical therapy interventions, conditioning programs,

use of multiple modalities, extensive soft tissue work, multiple

trigger point injections, and nerve blocks." He opined that

Trail exaggerated her disability on a functional capacity

evaluation and that her numerous visits to the emergency room had

unreasonably burdened the health care system. Dr. Joiner

concluded that Trail represented "a case of frank symptom

magnification." II.

Trail bore the burden of proving that her disability was

causally related to her compensable injury by accident. She also

bore the burden of showing that her emergency room medical

treatment was necessary, causally related to her compensable

injury by accident, and necessitated by an emergency. See Payne

v. Master Roofing & Siding, Inc., 1 Va. App. 413, 415, 339 S.E.2d

559, 560 (1986). The medical records and opinions of Drs.

Hartley and Joiner amply support the commission's finding that

Trail failed to prove that her medical treatment and disability

after September 26, 1995 were causally related to her compensable

injury. In addition, Dr. Joiner's opinion that Trail's emergency

room visits were not medically necessary supports the

commission's decision that employer was not responsible for the

cost of such treatment.

As a partially disabled employee, Trail bore the burden of

4 proving that she made a reasonable good faith effort to procure

suitable work. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va.

App. 459, 464, 359 S.E.2d 98, 101 (1987). Trail testified that

she applied for jobs at fast food restaurants, supermarkets, and

motels. All of the positions involved duties similar to her pre-

injury job and were incompatible with her physical restrictions.

Based upon her testimony, the commission upheld the deputy

commissioner's finding that Trail did not apply for these jobs in

good faith, "but merely to pursue her own aims." The

commission's findings are binding and conclusive upon us. See

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

Thus, credible evidence in this record supports the

commission's award of temporary total disability benefits for the

period of September 9, 1994 through September 16, 1994, and the

commission's refusal to award disability benefits for any other

period of time on the ground that Trail did not make a good faith

effort to market her residual work capacity. The commission also

appropriately refused to hold employer responsible for the cost

of Trail's emergency room visits or for any medical treatment

rendered after September 26, 1995.

III.

After the deputy commissioner's January 19, 1996 decision,

Trail filed various receipts, medical bills, medical reports, and

letters from lay witnesses with the commission. In addition,

5 Trail later filed various receipts, medical records, and medical

bills. However, Trail did not file a petition, required pursuant

to Rule 3.3, requesting the full commission to consider these

documents on review as after-discovered evidence. Trail also has

not alleged any basis upon which these documents could qualify as

after-discovered evidence. See Williams v. People's Life Ins.

Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 (1995).

Accordingly, in rendering our decision, we did not consider those

documents. We can only consider evidence that was properly

before the commission when it made its decision. For the reasons stated, we affirm the commission's decision.

Affirmed.