City of Alexandria v. D. Eloise Clephas

• Court: Court of Appeals of Virginia
• Decided: May 14, 1996
• Docket: 1777954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff

CITY OF ALEXANDRIA

v. Record No. 1777-95-4 MEMORANDUM OPINION * BY JUDGE ROSEMARIE ANNUNZIATA D. ELOISE CLEPHAS MAY 14, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Philip G. Sunderland (Amy Marschean; Office of the City Attorney, on briefs), for appellant. John J. O'Donnell, Jr., for appellee.

This matter came before the commission on the application of

appellant, City of Alexandria ("employer"), alleging appellee,

D. Eloise Clephas ("claimant"), was able to return to her

pre-injury employment. The deputy commissioner concluded that

claimant could return to work and terminated her temporary total

compensation. The full commission reversed, and employer

appeals. Finding no error, we affirm.

I.

On June 3, 1991, claimant suffered a compensable injury by

accident when she fell down a staircase while inspecting a

building. Claimant injured her right shoulder and also suffered

pain in her neck and lower back and numbness in her hands. On

January 10, 1992, claimant underwent surgery to repair her right

rotator cuff and right carpal tunnel. Claimant subsequently * Pursuant to Code § 17-116.010 this opinion is not designated for publication. developed Reflex Sympathetic Dystrophy ("RSD") and remained

unable to work.

On the day of her accident, claimant worked as an Existing

Structures Inspector for employer and was responsible for

enforcing city property standards by inspecting residential and

commercial facilities. A job description completed in 1991

indicates that inspectors had to crawl, climb ladders, push or

pull boxes, and lift a maximum of fifteen pounds occasionally,

estimated to be one-third of the time or less. The 1991

description included tasks that inspectors might encounter on the

job, but that the job did not necessarily require. Claimant testified that, while the job required her to crawl

on occasion, she never found it necessary to open a fire door or

climb a ladder. Another inspector, Patricia Walker, testified

that she had never had to crawl or climb a ladder, but that she

found it necessary to open fire doors. Both Walker and the

inspectors' supervisor, Thomas Flynn, testified that if an

inspector faced a situation requiring the inspector to crawl, the

inspector was instructed to seek assistance from other city

personnel such as the Police, Fire Department, Animal Control, or

New Construction Inspectors. Flynn testified that an inspector

might have found it necessary to climb a stepladder to test a

smoke alarm but stated that not all inspectors use the same

techniques in performing their work. Walker testified that she

uses a three-foot stick to test smoke alarms, for example.

- 2 - Walker, Flynn, and claimant all testified that the job required

writing and the use of a computer keyboard to input collected

data.

In light of the 1991 job description, none of the four

physicians who examined claimant from the date of her accident

through the Spring of 1994 concluded that claimant had recovered

sufficiently to return to full employment. One of those four,

Dr. Roger Gisolfi, ordered a Functional Capacity Evaluation

("FCE") and other tests in June 1994. On July 25, 1994, employer prepared a new job description

for claimant's position. The 1994 description eliminated any

requirement regarding climbing ladders or crawling. It describes

the typical inspector's day as requiring one and one-half hours

of paperwork before beginning inspections, frequent movement in

and out of a car, continuous walking in and out of buildings, and

the use of a three-foot, one-pound stick to test safety devices

during inspections. The 1994 description indicates that

inspectors are to have property owners move furniture, and, where

high or unsafe areas are to be inspected, inspectors are required

to seek assistance from other city personnel such as the Fire

Department, Police Department, Animal Control, or each other.

The 1994 description describes standing, walking, and driving as

the main physical activities associated with the job and notes

that the job requires continuous "Fine motor - finger" activity

and extensive writing. The 1994 description further indicates

- 3 - that no climbing, crawling, or heavy pushing, exceeding thirty

pounds, is required and that only rarely would an inspector have

to push small furniture or a fire door. The 1994 description was

compiled to comply with the Americans With Disabilities Act,

which requires that only the essential functions of a job be

described. That description was based on an interview with the

inspectors' supervisor and observations of an inspector at work.

Based on the 1994 job description and the findings of the

1994 FCE, Dr. Gisolfi released claimant to return to full

employment on August 17, 1994. On August 31, employer filed an

application for hearing, seeking to terminate claimant's

temporary total benefits. Subsequently, claimant was examined by

Dr. David Kavjian and Dr. Hugo Davalos. Based on their

examinations of claimant and their review of the results from the

tests conducted in June 1994, both Drs. Kavjian and Davalos

concluded that claimant remained limited in her functional

capacity and could not return to full employment. It is unclear

upon which job description Drs. Kavjian and Davalos based their

opinions. The full commission reversed the deputy commissioner's

decision to terminate benefits, concluding that employer had not

proven claimant capable of performing her pre-injury job. The

commission found that all of the doctors agreed with the

diagnosis of RSD and bilateral carpal tunnel syndrome. It also

focused on Dr. Gisolfi's testimony that claimant could not get on

- 4 - her hands and knees, climb ladders, or open heavy doors. The

commission concluded that, although claimant's job description

had been revised to eliminate those activities, employer failed

to meet its burden of proving claimant able to make a full and

unconditional return to all aspects of her pre-injury employment.

II.

Factual findings made by the commission are "conclusive and

binding" upon this Court on review. Code § 65.2-706. A question

raised by conflicting medical opinion is a question of fact.

Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687,

690 (1985); City of Norfolk v. Lillard, 15 Va. App. 424, 429, 424

S.E.2d 243, 246 (1992). This Court on appeal does not judge the

credibility of the witnesses or weigh the evidence. Johnson, 229

Va. at 121, 326 S.E.2d at 690. "[I]t is our duty to determine

whether credible evidence supports the commission's findings

. . . and, if such evidence exists, to sustain the finding." Id.

(quoting Cook v. City of Waynesboro, 225 Va. 23, 31, 300 S.E.2d

746, 750 (1983)); see also Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872, 874 (1992).

The threshold test for compensability is whether the

employee is able fully to perform the duties of pre-injury

employment. Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284

S.E.2d 605, 607 (1981); Johnson, 229 Va. at 120, 326 S.E.2d at

690. Employer contends that the commission failed to apply the

correct test in evaluating whether claimant was precluded from

- 5 - performing her pre-injury job and erred in rejecting the revised

job description. It contends the commission erroneously focused

not on claimant's pre-injury duties as defined in the new job

description but on the potential physical activities associated

with the job as set forth in the earlier description. We assume,

without deciding, that the revised job description, which

eliminated climbing, crawling, and opening heavy fire doors,

provided a reliable basis for determining claimant's pre-injury

work requirements and that it was error to disregard it.

Nonetheless, we find credible evidence in the record to support

the commission's decision, notwithstanding its failure to

consider the 1994 description. Employer does not dispute that the job, according to either

description, requires employees to use their hands for a variety

of fine motor tasks, such as typing and extensive writing. The

evidence in the case establishes, however, that claimant's use of

her hands was limited and that she is not fully capable of

performing such tasks. Medical evidence shows that claimant was

limited to work which did not require "the repetitive use of the

hands such as typing" and that claimant remained "very limited in

her functional ability, particularly with respect to her hands."

Tests ordered by Dr. Gisolfi confirm that claimant was

restricted in the use of her right hand and showed changes

consistent with RSD in that hand. Dr. Gisolfi also notes that

cold temperatures could affect claimant's RSD. Claimant herself

- 6 - testified that she had difficulty writing, using a keyboard, and

holding handrails, and that cold weather, in which the job

required her to work, caused her great pain.

The existence of medical evidence in the case supporting

employer's contention that claimant could return to work is not

determinative. See Wagner Enters., Inc. v. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991). Where there is credible

evidence to support the commission's findings, the award will be

affirmed. Id.

Accordingly, the commission's decision is affirmed.

Affirmed.

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