Brown & Root, Inc. v. Luther H. Richards

• Court: Court of Appeals of Virginia
• Decided: December 23, 1997
• Docket: 0580974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Elder and Senior Judge Duff Argued at Alexandria, Virginia

BROWN & ROOT, INC. and ARGONAUT INSURANCE COMPANY MEMORANDUM OPINION** v. Record No. 0580-97-4 BY JUDGE CHARLES H. DUFF DECEMBER 23, 1997 LUTHER H. RICHARDS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Mark D. Crawford (Friedlander, Misler, Friedlander, Sloan & Herz, on briefs), for appellants.

Gregory J. Harris (Law Offices of Gregory J. Harris, P.C., on brief), for appellee.

Brown & Root, Inc. and Argonaut Insurance Company

(collectively employer) appeal from a decision of the Virginia

Workers' Compensation Commission (commission) holding that Luther

H. Richards (claimant) was temporarily totally disabled from

January 5, 1995 through the present. Employer further contends

the commission erred when it found that claimant was marketing

his remaining work capacity. For the following reasons, we

affirm the commission in part and reverse it in part.

* On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as chief judge. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.

On appeal, we review the evidence in the light most

favorable to the party prevailing below. See R.G. Moore Bldg.

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990).

Claimant sustained a compensable injury to his neck on July

13, 1994. In a decision ultimately affirmed by this Court, See

Brown & Root, Inc. v. Richards, Record No. 1548-95-4 (Va. Ct.

App. Dec. 19, 1995), a deputy commissioner found that claimant

was entitled to temporary total disability payments from July 20,

1994 through January 5, 1995. On February 3, 1995, claimant

filed an application for change of condition, contending that he

continued to be temporarily totally disabled from January 6, 1995

through the present. In his application, claimant cited to a January 6, 1995

"Evaluation of Disability Status" form completed by Dr. James

Smith. On that form, Dr. Smith checked a box indicating that

claimant had "[m]oderate limitation of functional capacity;

capable of clerical/administrative (sedentary*) activity.

(60-70%)." He also checked boxes indicating that claimant was

not totally disabled, but was temporarily unable to work. Dr.

Smith indicated that claimant could probably return to work on

March 15, 1995, and wrote that claimant "cannot return to regular

duty - hope for light duty - no lifting over 10 lbs. no overhead

work."

2 On January 26, 1995, Dr. Smith wrote a note directing

claimant to stay out of work for five weeks until follow up. Dr.

Smith gave no indication that claimant could perform any

light-duty work with restrictions. On March 2, 1995, claimant

advised Dr. Smith that "there were no light duty options

available to return to work . . . ." Dr. Smith noted, "I . . .

feel that his prognosis for return to his previous line of work

[as a heavy equipment operator] is tenuous based on his progress

to date." Dr. Smith referred claimant to Dr. Steven Tynes, who first

saw claimant on March 30, 1995. Dr. Tynes' notes between March

30, 1995 and February 5, 1996 are silent regarding claimant's

ability to return to work. Dr. Tynes' February 5, 1996 report

reflects claimant's reported ability to "probably lift up to 25

lbs without any problems." On March 11, 1996, claimant stated

that he could drive up to one and a half hours before he began to

suffer from paresthesia in his arms. Dr. Tynes wrote of claimant

on March 11, 1996, "I have already stated that I do not feel he

will ever be able to return to his former job as a heavy

equipment operator. [Claimant] has a 5th [sic] grade education.

Therefore, his current opportunities for other meaningful

employment are quite limited due to his education." (Emphasis

added.).

Claimant, who is fifty-two years old, has a fourth grade

education and is illiterate, testified extensively regarding

3 efforts he had made toward finding light-duty employment. When

asked by counsel whether Dr. Smith or Dr. Tynes had ever released

him to perform light-duty work, claimant replied: "Yes, sir."

Later, when asked what steps he took after seeing his doctors

in February or March 1995, claimant answered, "[w]hen he -- the

doctor did say on light-duty, able to do some light-duty work, I

did contract [sic] Brown & Root." On cross-examination, employer

asked claimant: "[Y]ou're not claiming that you're totally

disabled, that you can't do anything, right?" Claimant

responded: "No, sir." Claimant never testified that, after

March 2, 1995, he was unable to perform light-duty work. John Bullock, a private investigator, conducted surveillance

of claimant from March 19 through March 21, 1996. On all three

days he observed claimant at the Horseshoe Bay Marina. A

videotape taken by Bullock shows claimant hammering and

transporting bags of concrete in a wheel barrow. The videotape

also shows claimant putting on a utility belt upon arriving at

the marina.

Based on Dr. Smith's January 26, 1995 and March 2, 1995

notes, the deputy commissioner found that claimant was totally

disabled between those dates. The deputy commissioner found,

however, that there was no medical evidence that claimant was

totally disabled between January 6 and January 26, 1995, or after

March 2, 1995. The deputy commissioner noted that "[u]pon

considering the testimony of the claimant, in conjunction with

4 the medical evidence and the videotape viewed at the hearing, the

Commission does not find the claimant to be a credible witness."

The deputy commissioner further found that claimant was not

sufficiently marketing his remaining work capability.

The full commission reversed the deputy commissioner's

holding that claimant was not totally disabled between January 6

and January 26, or after March 2, 1995, finding "upon Review that

the claimant's evidence, taken as a whole, establishes a change

in condition and total disability commencing January 6, 1995." 1

The commission focused on the fact that none of the medical

records specifically released claimant to light-duty work. It

further concluded that claimant's efforts to market what

remaining work capacity he possessed were reasonable.

II.

"General principles of workman's compensation law provide

that '[i]n an application for review of any award on the ground

of change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.

459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted). Unless

we can say as a matter of law that claimant's evidence failed to

meet his burden of proving temporary total disability beginning 1 We find no support for employer's contention that the commission impermissibly shifted the burden of proof to employer with regard to the time period of January 6 through March 2, 1995. Further, we find it unnecessary to address this question as it pertains to the period of time after March 2, 1995.

5 January 6, 1995, the commission's findings are conclusive and

binding upon us. See Tomko v. Michael's Plastering Co., 210 Va.

697, 699, 173 S.E.2d 833, 835 (1970).

To establish entitlement to total disability benefits, a

claimant must prove that he is totally incapacitated from

performing any work, or that he was unsuccessful, after expending

reasonable effort, in securing selective employment. See Big D

Quality Homebuilders v. Hamilton, 228 Va. 378, 382, 322 S.E.2d

839, 841 (1984). "'No injury or occupational disease is

compensable as a total incapacity until it is proven that the

injury or disease has effectually closed the labor market to the

employee. A showing that he may not return to his former

occupation is not such proof.'" Pocahontas Fuel Co. v. Barbour,

201 Va. 682, 684-85, 112 S.E.2d 904, 906 (1960) (quoting

approvingly from opinion of dissenting commissioner). In

determining whether a claimant is capable of performing some

work, we look at "all of the facts and surrounding circumstances.

This would necessarily include consideration of the claimant's

perception of his condition, his abilities, and his

employability, and of the basis for that perception." Ridenhour

v. City of Newport News, 12 Va. App. 415, 418, 404 S.E.2d 89,

90-91 (1991) (rejecting contention that a claimant had no duty to

seek selective employment unless informed by his physician that

he could return to light-duty work).

Credible evidence supports the commission's finding that

6 claimant was totally disabled from January 26, 1995 through

March 2, 1995. The January 26, 1995 note states that claimant is

unable to work and gives no indication that claimant is able to

perform light-duty work. However, no credible evidence supports

a finding of total disability from January 6 through January 25,

1995, and subsequent to March 2, 1995. 2

The January 6, 1995 evaluation form clearly states that

claimant was not totally disabled, that his level of impairment

consisted of "[m]oderate limitation of functional capacity," and

that he was capable of sedentary work. This evaluation form,

without more, does not constitute credible evidence sufficient to

meet claimant's burden of proving total disability between

January 6 and January 25, 1995. With regard to the time period subsequent to March 2, 1995,

the commission seemingly ignored the fact that, when asked

whether his physicians had released him to return to light-duty

work in February or March 1995, claimant stated unequivocally:

"Yes, sir." See Pence Nissan Oldsmobile v. Oliver, 20 Va. App.

314, 318, 456 S.E.2d 541, 543 (1995) (reaffirming applicability

to workers' compensation proceedings of Massie v. Firmstone, 134

Va. 450, 462, 114 S.E. 652, 656 (1922), that a party is bound by

his testimony at trial). Claimant admitted on cross-examination

2 Under the circumstances, we find it unnecessary to address employer's question regarding whether the commission impermissibly disregarded the deputy commissioner's credibility findings.

7 that he was not totally disabled, 3 and at no point claimed that

he was unable to perform light-duty work. The videotape of

claimant's activities at the marina reinforces employer's

position that claimant was capable of performing light-duty work.

Likewise, claimant's medical records fail to prove total

disability subsequent to March 2. At no point after March 2,

1995 did either of claimant's physicians state that claimant was

unable to perform any type of work. Rather, the records merely

state that claimant would not be able to return to his regular employment as a heavy equipment operator. When the medical

records are considered in conjunction with claimant's testimony,

it is readily apparent that claimant was capable of light-duty

work subsequent to March 2, 1995. Accordingly, there is

insufficient credible evidence in the record to support the

commission's finding that claimant was totally disabled after

March 2, 1995.

III.

Claimant testified that he contacted six prospective

employers between January 1995 and March 1996. He sought

light-duty work from employer in approximately January 1995.

Between January and March 1995, and again in March 1996, he

sought employment with Austin Engineering. He contacted

3 While claimant contends that the question was vague and the response subject to interpretation, we do not find it so. Moreover, claimant failed, on re-direct, to clarify this response.

8 Untermeyer Tire in February 1995 and March 1996, Nash Builders in

March 1995, Cottonwood Shores between February and March 1995,

and Horseshoe Bay Marina in the summer of 1995 and on March 15,

1996. Both Untermeyer Tire and Horseshoe Bay Marina advised

appellant the first time he sought employment with them that he

was not eligible for employment there because of his physical

condition. He contacted employers not only in his hometown of

Marble Falls, Texas (population approximately 16,000), but also

in Austin, Texas. 4 Claimant testified that his fiancee checked

the local weekly newspaper for jobs for him.

"In order to receive benefits under the Workers'

Compensation Act, a claimant who has been injured in a

job-related accident must market his remaining capacity to work."

Herbert Bros., Inc. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d

283, 284 (1992). "[S]ince the hearing in this case was on

[claimant's] application, [he] had the burden of proving that he

made a reasonable effort to find suitable employment." National Linen Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33

(1989). [I]n deciding whether a partially disabled employee has made reasonable effort to find suitable employment commensurate with his abilities, the commission should consider such factors as: (1) the nature and extent of [the] employee's disability; (2) the employee's training, age, experience, and education; (3) the nature and extent of [the] 4 Claimant testified that Austin is approximately fifty miles and a one-hour drive from his residence. Both Drs. Smith and Tynes are located in Austin.

9 employee's job search; (4) the availability of jobs in the area suitable for the employee, considering his disability; and (6) any other matter affecting [the] employee's capacity to find suitable employment.

Id. at 272, 380 S.E.2d at 34 (footnotes omitted). See Bateman, 4

Va. App. at 466-67, 359 S.E.2d at 103 (finding insufficient

marketing of remaining work capacity where, over a period of six

months, the claimant contacted thirteen prospective employers,

submitted just five job applications, and failed to register with

the unemployment office). Cf. Jenkins, 14 Va. App. at 717, 419

S.E.2d at 284 (finding adequate marketing where, over a period of

several months, claimant, who was forty-nine years old with just

seven years of formal education, contacted thirty prospective

employers and submitted ten application forms).

With regard to the period of time between January 6 and

January 25, 1995, Dr. Smith indicated on January 6 that claimant

was capable of performing "clerical/administrative" employment.

Thus, claimant's illiteracy and lack of education effectively

precluded him from procuring selective employment. Accordingly,

credible evidence supports the commission's finding that claimant

was sufficiently marketing his remaining work capacity during

that period of time.

Claimant was not adequately marketing his remaining work

capacity subsequent to March 2, 1995. He contacted a total of

six employers between January 6, 1995 and April 18, 1996, and

there is no evidence that he made any job contacts between April

10 1995 through February 1996. Claimant returned to at least two of

these employers after they previously told him that he would not

be hired because of his physical condition. Although his fiancee

checked the local newspaper for work for claimant, there is no

evidence that claimant examined any newspapers with larger

circulations, such as those published in nearby Austin, Texas.

Furthermore, there is no evidence that he registered with his

local unemployment office, or that he otherwise sought any

retraining assistance. We recognize that claimant is handicapped by his illiteracy

and lack of formal education; nevertheless, these factors would

not prevent him from more aggressively pursuing low-skilled,

light-duty employment both in his hometown and in the Austin

area. Accordingly, we hold that, as a matter of law, the

commission erred in finding that claimant adequately marketed his

remaining work capacity beginning March 2, 1995. Affirmed in part, reversed in part.