COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Richmond, Virginia
PHILIP MORRIS USA and TWIN CITY FIRE INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 0832-96-2 JUDGE SAM W. COLEMAN III JANUARY 21, 1997 CARLA RENE MARSHALL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION J. Mark DeBord (Hunton & Williams, on briefs), for appellant.
Louis D. Snesil (Laura L. Geller; McDonald & Snesil, on brief), for appellee.
Philip Morris USA and Twin City Fire Insurance Company, the
employer, appeal the Workers' Compensation Commission's award to
Carla Rene Marshall, the claimant, of temporary total and
permanent partial disability benefits based upon her change in
condition application pursuant to Code § 65.2-708. Philip Morris
contends that the commission erred by (1) revisiting and
reconsidering its November 1992 award and agreed statement of
fact holding that the claimant was not disabled and could return
to work in September 1992, (2) reversing the deputy
commissioner's finding that the claimant had failed to meet her
burden of proof that she was disabled as a result of her injury,
(3) reversing the deputy commissioner's determination that the
claimant was not entitled to permanent partial disability * Pursuant to Code § 17-116.010 this opinion is not designated for publication. benefits, and (4) awarding benefits after finding that the
claimant abandoned her designated treating physician. We hold
that the November 1992 agreed statement of fact and award finding
that the claimant could return to her pre-injury employment did
not preclude her from claiming and proving a change of condition.
We further hold that the evidence is sufficient to support the
commission's finding of a change in condition and that the
claimant was disabled and entitled to temporary total and
permanent partial disability benefits. Accordingly, we affirm
the commission's decision. On August 28, 1992, the claimant, who worked as a press
operator, was injured when the press fell on her right hand. The
employer accepted the injury as compensable, and the parties
entered into a Memorandum of Agreement for payment of temporary
total disability compensation beginning September 5, 1992. In
the Agreement, the parties identified the injury as a "contusion
to finger." The parties then executed an Agreed Statement of
Fact in which the claimant stated that she was able to return to
her pre-injury work on September 8, 1992. The commission
approved the Memorandum of Agreement and entered an award
granting temporary total disability benefits from September 5,
1992 through September 7, 1992. Neither party appealed the
award.
On July 13, 1994, the claimant filed an application alleging
a change in condition and requested both temporary total and
- 2 - permanent partial disability benefits. At the hearing, the
employer defended on the grounds that the evidence showed neither
a temporary total disability nor a permanent partial disability
and that the claimant had abandoned her treating physician which
disqualified her for benefits.
The evidence showed that immediately after the accident the
claimant saw Dr. Claiborne Irby who diagnosed her injury as a
contusion of the right hand. After Dr. Irby reviewed the
claimant's job description and talked with her, Dr. Irby released
the claimant to go back to work on September 7, 1992.
Dissatisfied with Dr. Irby's treatment and evaluation, the
claimant requested that Philip Morris refer her to another
doctor, and she was referred to Dr. Stephen Leibovic, who saw the
claimant on September 25, 1992. Dr. Leibovic found that the
claimant had a positive Tinel's sign in her right forearm that
was absent in the left. Dr. Leibovic's office notes stated: I believe that Ms. Marshall has mild carpal tunnel syndrome bilaterally, the right somewhat worse than the left. In fact, probably what happened is that she may have had predisposition to this condition, as indicated by the mild involvement on the left, and the injury may have exacerbated it.
Dr. Leibovic was of the opinion that the claimant's carpal tunnel
syndrome was related to her accidental injury, but that she was
not disabled from performing her pre-injury occupation. However,
he did impose a zero to fifty pound lifting restriction and
advised against repetitive movements.
- 3 - In June 1994, the claimant saw Dr. Charles Bonner to obtain
an evaluation of permanent impairment. Dr. Bonner's report
stated: Based on the patient's complaint of pain and discomfort in the upper extremity associated with the history of decreased activities of daily living and avocational activities and sleep and on the review of medical records from Dr. Leibovic documenting carpal tunnel syndrome it is my conclusion this patient has a 15% permanent partial impairment of the upper extremity due to the traumatic carpal tunnel syndrome.
In a letter to claimant's counsel on May 31, 1995, Dr. Bonner
stated that the claimant's carpal tunnel syndrome was caused by
the traumatic injury on August 28, 1992.
At the deputy commissioner's hearing, the claimant testified
that after the accident, she went to Philip Morris' medical
department and, without being offered a panel of physicians, she
was referred to Dr. Irby. After seeing Dr. Irby, she requested a
second opinion and the employer sent her to Dr. Leibovic, whom
she saw one time. The claimant testified that she did not see
Dr. Leibovic again because she was told by Philip Morris'
director of occupational health services, Dr. Constance Hanna,
that Philip Morris would not pay for further treatment by Dr.
Leibovic. Dr. Hanna testified by deposition that the claimant
was offered a panel of physicians by Philip Morris' nurse and
that the claimant chose Dr. Irby. Dr. Hanna also testified that
she never told the claimant that Philip Morris would not pay her
workers' compensation benefits.
- 4 - The claimant testified that she returned to work on
September 8, 1992, but, after attempting to do so, was not able
to perform her job duties due to her injury. She stated that she
could only use one of her hands and that she could not keep up
with her work so her supervisor, would put me in a room by myself and make me stay in that room during the whole entire shift. Sometimes they would come in and make me go back out on the floor to try to do the job, and then when I couldn't do it they would put me back in the room again, and they would make me stay in the room during the whole entire shift, the office.
Philip Morris discharged the claimant in November 1992 because,
according to the claimant, "they said they didn't have any work
for me to do, they didn't have a job for me." The employer
presented no evidence concerning the claimant's discharge.
The deputy commissioner found that the claimant failed to
prove a change in condition and denied the claims for temporary
total and permanent partial disability. Specifically, the deputy
held that the claimant did not prove that her disability was
causally related to her accidental injury, or that she had
reached maximum medical improvement, or that she had a permanent
disability. The deputy based his holding, in part, upon the
factual findings that the claimant failed to prove her light duty
restrictions prevented her from doing her pre-injury work, that
Dr. Leibovic's report was "conflicting and ambiguous," and that
Dr. Bonner failed to explain a basis for his opinion that the
carpal tunnel syndrome was traumatic in origin. Thus, the
- 5 - claimant failed to prove a causal relation between her disability
and the accidental injury. Furthermore, the deputy held that Dr.
Leibovic was the claimant's treating physician and that treatment
by Dr. Bonner was unauthorized.
The full commission reversed the deputy commissioner's
decision and awarded benefits based upon a finding that the
claimant proved a change in condition. The commission found
that, due to the claimant's traumatic carpal tunnel syndrome, she
was unable to perform her pre-injury job and that her attempt and
subsequent inability to do the work were better evidence of her
disability than the medical opinions stating that she could
return to work. The commission also held that the claimant was
entitled to permanent partial disability based upon Dr. Bonner's
finding that she had a 15% permanent disability in her right hand
as a result of carpal tunnel syndrome caused by her August 28,
1992 injury by accident. Although the claimant was only
partially disabled, the commission held that she was entitled to
temporary total disability benefits because as a partially
disabled employee, she had been terminated and had made a
reasonable, but unsuccessful, effort to market her residual
capacity. As to the employer's responsibility for claimant's medical
treatment between September 1992 and June 1994, the commission
found that Philip Morris told the claimant they would no longer
pay for her to see a doctor. The commission found that the
- 6 - claimant's testimony on this issue was unrebutted. However, the
record reflects that, in Dr. Hanna's deposition, she denied
making this statement to the claimant. Thus, the evidence to
support the factual finding was not unrebutted. Additionally,
the commission found that the claimant's testimony that she was
not offered a panel of physicians was unrebutted. Again, the
record shows that Dr. Hanna, based upon her review of claimant's
medical records, testified that the claimant had been offered a
panel of physicians by Philip Morris' nurse, and the claimant
chose Dr. Irby. The employer urges this Court to reverse the
commission's decision based, in part, on the commission's
erroneous finding that certain facts were unrebutted. Although
the basis for these factual findings may have been erroneous,
these facts have no relevance to the questions presented, namely
whether the claimant proved a change in condition or whether the
claimant abandoned her medical treatment.
NOVEMBER 1992 AWARD The employer contends that the Memorandum of Agreement,
Agreed Statement of Fact, and the November 1992 award precluded
the commission from reconsidering and deciding whether the
claimant was able to perform her pre-injury work. The employer
argues that the claimant agreed and the award found that the
claimant could return to her pre-injury work in September 1992
and that, other than the claimant changing her mind, no medical
evidence proved a change of condition. The employer also argues
- 7 - that the prior award and underlying facts which found that
claimant could return to her pre-injury employment could not be
reviewed except on the grounds of fraud or mutual mistake.
"The commission's approval of a memorandum of agreement is
binding, and 'an award of compensation entered upon such
agreement is as enforceable as an award entered in a contested
proceeding.'" Butler v. City of Virginia Beach, 22 Va. App. 601,
604, 471 S.E.2d 830, 832 (1996) (quoting Hartford Fire Ins. Co. v. Tucker, 3 Va. App. 116, 121, 348 S.E.2d 416, 419 (1986)); see
also Code §§ 65.2-701(A) and -706(A). "Absent clear and
convincing evidence of fraud, misrepresentation, mutual mistake
or imposition, the commission has no authority to vacate an award
from which no party sought timely review." Butler, 22 Va. App.
at 604, 471 S.E.2d at 832; accord K & L Trucking Co. v. Thurber,
1 Va. App. 213, 337 S.E.2d 299 (1985).
However, pursuant to Code § 65.2-708, an award and whether a
claimant is disabled are subject to review upon the application
of either party or the commission alleging a change in condition.
"An award based on a change in condition is different from the
right to recover for the injury itself; a change in condition is
remedial and enlarges or diminishes a former award to meet the
circumstances of a particular case." Bartholow Drywall Co. v.
Hill, 12 Va. App. 790, 793, 407 S.E.2d 1, 2-3 (1991). The
statute defines a change in condition as "a change in physical
condition of the employee as well as any change in the conditions
- 8 - under which compensation was awarded, suspended, or terminated
which would affect the right to, amount of, or duration of
compensation." Code § 65.2-101. "These changes include
'progression, deterioration, or aggravation of the compensable
condition . . . appearance of new or more serious features [and]
failure to recover within the time originally predicted . . . .'"
Armstrong Furniture v. Elder, 4 Va. App. 238, 243, 356 S.E.2d
614, 616 (1987) (quoting 3 A. Larson, The Law of Workmen's Compensation § 81.31(a) (1983)). When a change in condition is
alleged and proven, the commission may make an award either
"ending, diminishing, or increasing the compensation previously
awarded . . . ." Code § 65.2-708.
In this case, the claimant requested a review of the
November 1992 award alleging a change in her condition. Based on
the Memorandum of Agreement, the claimant's original award was
for an injury which was a contusion to the finger. Thereafter,
she alleged a change in condition in that she was disabled due to
traumatic carpal tunnel syndrome that was caused by her injury.
Because the traumatic carpal tunnel syndrome developed as a "new
and more serious feature" which caused the claimant not "to
recover within the time originally predicted," the commission did
not err in considering whether the claimant was able to do her
pre-injury work due to traumatic carpal tunnel syndrome caused by
the accidental injury after the November 1992 award.
Furthermore, the commission's finding that the Agreed Statement
- 9 - of Fact had no particular significance to whether the claimant
thereafter was disabled is essentially correct. Based solely
upon the contusion to the finger, the statement indicates that
the claimant was able to return to her pre-injury work. Neither
the Agreement, the Statement of Fact, nor the award contemplates
that the claimant's injury or its consequences was anything other
than a contusion to the finger. However, the claimant's change
in condition application alleges, in effect, that when she
attempted to return to work, she was disabled due to the
traumatic carpal tunnel syndrome.
CHANGE IN CONDITION
"When an employee files an application for reinstatement of
disability benefits, two questions arise: (1) has there been a
change in the employee's capacity to work; (2) if so, is the
change due to a condition causally connected with the injury
originally compensated." King's Market v. Porter, 227 Va. 478,
483, 317 S.E.2d 146, 148 (1984). "General principles of
workman's compensation law provide that 'in 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) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va.
App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). The employer
contends that the evidence presented by the claimant is
- 10 - insufficient to meet her burden of proof because she did not show
that her condition had changed from the time of the initial award
and because all of the treating physicians, with the exception of
Dr. Bonner, who expressed no opinion on the issue, stated that
she could return to work.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Based upon our review of the record, we hold that there is
sufficient credible evidence in the record to support the
claimant's change in condition application. After reviewing the records from Dr. Leibovic and examining
the claimant, Dr. Bonner diagnosed the claimant's condition as
traumatic carpal tunnel syndrome and opined that she has a 15%
permanent partial disability due to the injury that she received
on August 28, 1992. Dr. Bonner's letter dated May 31, 1995
causally connects the claimant's carpal tunnel syndrome to her
injury by accident, which was deemed compensable in the November
1992 award. Dr. Bonner expressed no opinion on the claimant's
ability to perform her pre-injury work. However, he did put the
claimant on light duty restrictions which included no heavy
lifting and no repetitive activities with her hands.
Drs. Irby, Leibovic, and Belle opined that the claimant
would, at some point, recover from the contusion to her finger
and be able to return to her pre-injury work. However, being
- 11 - able to return to work "is not the standard for determining
disability. The threshold test of compensability is whether the
employee is 'able fully to perform the duties of his preinjury
employment.'" Celanese Fibers Co. v. Johnson, 229 Va. 117, 120,
326 S.E.2d 687, 690 (1985). The claimant testified that she did
try to return to her pre-injury work, but was unable to perform
the job. The disability related to the traumatic carpal tunnel
syndrome, not to the contusion of the finger. The commission
found that the claimant made a bona fide effort to return to
work, but due to the carpal tunnel syndrome she was unable to do
her job. Although Drs. Irby, Leibovic, and Belle opined that she
could return to work, "[t]he fact that contrary evidence may be
found in the record is of no consequence if credible evidence
supports the commission's finding." Manassas Ice & Fuel Co. v.
Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). The
claimant's testimony regarding her inability to do the work and
Dr. Bonner's diagnosis are credible evidence sufficient to
support the commission's decision that the claimant was partially
disabled as a result of traumatic carpal tunnel syndrome and that
a change occurred in the claimant's condition. PERMANENT PARTIAL DISABILITY AND TEMPORARY TOTAL BENEFITS
The employer contends that the commission erred in finding
that the claimant suffered a permanent disability. However, Dr.
Bonner's opinion that the claimant suffered from a 15% permanent
partial disability as a result of the carpal tunnel syndrome is
- 12 - sufficient credible evidence to support the commission's finding
of permanent disability. In view of the fact that the claimant
was partially disabled and discharged from her position, she is
entitled to temporary total disability benefits if she made a
reasonable effort to market her residual work capacity. See
Washington Metro. Area Transit Auth. v. Harrison, 228 Va. 598,
601, 324 S.E.2d 654, 655-56 (1985); Pocahontas Fuel Co. v.
Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960); Pocahontas Fuel Co. v. Agee, 201 Va. 678, 681, 112 S.E.2d 835, 838 (1960);
Island Creek Coal Co. v. Fletcher, 201 Va. 645, 648, 112 S.E.2d
833, 835 (1960). The commission found that the claimant made a
reasonable effort to market her residual work capacity by
contacting more than 100 potential employers between January 1993
and June 1995 and by registering with the Virginia Employment
Commission. On appeal, the employer does not challenge the
commission's finding of reasonable marketing, therefore, we
affirm the commission's decision on this issue. ABANDONMENT
The employer's final argument is that the claimant abandoned
her treating physician and sought unauthorized medical treatment,
which bars her from receiving disability benefits. Based upon
the commission's findings that the claimant was not offered a
panel of physicians and that the employer refused to pay for the
claimant's medical treatment, the commission found that Dr.
Belle, the claimant's personal physician whom she saw after the
- 13 - employer refused to pay for continued care by Dr. Leibovic, was
her treating physician. The employer argues that these findings
were erroneous in that the commission purported to base its
decision on unrebutted evidence. Regardless of the fact that the
commission erred in not considering the rebuttal evidence and
regardless of who was the claimant's treating physician, there is
no evidence that the claimant unjustifiably refused the medical
treatment of any doctor which would require a suspension of her
benefits. Code § 65.2-603(B) states in pertinent part: The unjustified refusal of the employee to accept such medical service . . . when provided by the employer shall bar the employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless, in the opinion of the Commission, the circumstances justified the refusal.
As we have previously stated, "[a]n unauthorized change in
physicians . . . is not necessarily equivalent to a refusal of
medical services under Code § [65.2-603(B)]." Davis v. Brown & Williamson Tobacco Co., 3 Va. App. 123, 127, 348 S.E.2d 420, 422
(1986). In order to constitute a refusal of medical services,
there must be some evidence that the claimant has "refused to
undergo medical treatment or to participate in the plan of
treatment recommended by the treating physician." Id.
In this case, there was no course of treatment recommended
by any physician, regardless of who the actual treating physician
was. The record shows that Dr. Leibovic instructed the claimant
- 14 - to wear a splint and to avoid heavy lifting and repetitive
motions. Dr. Belle prescribed a sling, Motrin for pain, and
Valium to help the claimant rest. There is no evidence in the
record that the claimant failed to follow the advice of either of
doctor. Therefore, we cannot say that the claimant refused
medical treatment which would require a suspension of her
benefits. There was evidence that the claimant failed to keep
three follow-up appointments with Dr. Leibovic. However, the
evidence shows that he had released her to return to work, that
these scheduled appointments were to follow her progress, and
were not part of a continuing course of treatment which she
abandoned. For the foregoing reasons, we affirm the decision of the
commission.
Affirmed.
- 15 -