COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Russell and AtLee UNPUBLISHED
Argued by videoconference
SECURITAS SECURITY SERVICES USA, INC. AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA MEMORANDUM OPINION* BY v. Record No. 0379-20-3 JUDGE ROBERT J. HUMPHREYS OCTOBER 13, 2020 CAROLYN E. GERSCH
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Roberta A. Paluck (Christopher M. Kite; Lucas & Kite, PLC, on brief), for appellants.
Michael J. Beste (Reinhardt Harper Davis, PLC, on brief), for appellee.
On February 5, 2020, the Workers’ Compensation Commission (“the Commission”)
found that Carolyn E. Gersch (“Gersch”) was properly awarded continuing temporary total
disability benefits as of July 24, 2019. Her employer, Securitas Security Services USA, Inc.
(“Securitas”) now appeals. Securitas contends that no credible evidence exists to support the
Commission’s finding that Gersch was entitled to temporary total disability benefits beginning
January 17, 2019 and continuing until conditions justified a modification thereof.
I. BACKGROUND
On January 10, 2018, Gersch sustained injuries while working as a security officer with
Securitas when she was “trying to open and pass through a heavy gate when she caught her left
foot on a curb, causing her to trip.” On February 22, 2018, Gersch filed a claim for benefits for
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. the same injuries. Shortly thereafter, she began treatment for her left shoulder and left hip
injuries with Dr. Robert T. Wyker (“Dr. Wyker”). Dr. Wyker recommended Gersch undergo
surgery on her left shoulder, which he performed on July 25, 2018. Dr. Wyker placed her on
temporary total disability beginning on the date of shoulder surgery through November 13, 2018.
On January 17, 2019, Dr. Wyker again totally restricted Gersch from work in anticipation
of a total replacement of her left hip. Her hip surgery took place on March 18, 2019. At a
follow-up visit on May 14, 2019, Dr. Wyker noted that Gersch was not to return to work. Gersch
made a subsequent appointment to see Dr. Wyker on June 11, 2019, sooner than her next
scheduled visit, because she “was doing well with essentially no pain until a couple weeks ago
when she started getting increasing discomfort in her left groin.” Dr. Wyker speculated that the
soreness “was soft tissue in nature” and planned to recheck her in four to six weeks.
Dr. Wyker’s notes from the June 11 visit do not reference Gersch’s ability to work.
Prior to the evidentiary hearing, Gersch’s counsel sent Dr. Wyker a questionnaire that
inquired whether she was totally disabled from employment in connection with her injuries.
Dr. Wyker filled out the form and returned it on July 24, 2019, wherein he answered that Gersch
was not totally disabled and was at least able to perform “light duty sedentary type work.”
Twelve days after Dr. Wyker filled out the questionnaire regarding Gersch’s work status,
on August 5, 2019, an evidentiary hearing was held before the deputy commissioner. Gersch
testified at the hearing that she had not been informed by either Dr. Wyker or her counsel that
she was released for sedentary work. Gersch was not “contemporaneously evaluated” by
Dr. Wyker when he replied to the questionnaire nor did she see or talk to Dr. Wyker between
July 24, 2019 and August 4, 2019. The Commission also noted that Dr. Wyker’s questionnaire
response was not filed with it until the evidentiary hearing.
-2- On September 13, 2019, the deputy commissioner awarded Gersch medical benefits for
her shoulder and hip injuries. She was also awarded temporary total disability from July 25,
2018 through November 22, 2018, and temporary total disability beginning January 17, 2019,
and continuing until conditions justified a modification thereof.
On February 5, 2020, the Commission affirmed each of the deputy commissioner’s
findings. Specifically, the Commission found that because the medical record provided no
statement that her work status had changed, Gersch denied knowledge of light duty work release
after July 24, 2019, and the deputy commissioner found her to be a credible witness, Gersch did
not have a duty to market her residual physical capacity. Accordingly, the Commission held the
continuing award of temporary total disability proper. Securitas appeals only the Commission’s
affirmance of the award of total disability on and after July 24, 2019.
II. ANALYSIS
A. Standard of Review
“An award by the Commission is conclusive and binding as to all questions of fact.”
Newport News Shipbuilding & Dry Dock Co. v. Wardell Orthopaedics, P.C., 67 Va. App. 404,
412 (2017) (quoting Ford Motor Co.v. Favinger, 275 Va. 83, 88 (2008)); see also Code
§ 65.2-706(A). Whether a claimant suffers a continuing disability is a question of fact to be
determined by evidence. See Hoffman v. Carter, 50 Va. App. 199, 216 (2007). On appeal, we
view 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 (1990). As such, “[w]e are bound by the
[C]ommission’s factual findings where those findings are supported by credible evidence in the
record,” despite the existence of contrary evidence or contrary evidentiary inferences. Herbert
Clements & Sons, Inc. v. Harris, 52 Va. App. 447, 452 (2008) (quoting Tomes v. James City
Fire, 39 Va. App. 424, 430 (2002) (interpreting Code § 65.2-706)). “The scope of a judicial
-3- review of the fact finding function of a workers’ compensation commission [, therefore,] is
‘severely’ limited, partly in deference to the agency’s expertise in a specialized field.” Southside
Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828 (2000) (alterations in original) (quoting Ga.-Pac.
Corp. v. Robinson, 32 Va. App. 1, 4-5 (2000)).
B. Entitlement to Continuing Temporary Total Disability
A party seeking compensation bears the burden of proving her disability and the periods
of that disability. See Marshall Erdman & Assocs. v. Loehr, 24 Va. App. 670, 679 (1997). The
test for determining whether a claimant failed to make reasonable efforts to market his or her
residual skills and forfeited the right to compensation is not a bright line but rather involves a
multitude of factors. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467 (1987). In
determining what constitutes a reasonable effort to market remaining work capacity, we analyze
the claimant’s efforts both in the context of reasonableness and dependent upon all the facts and
surrounding circumstances. See Ridenhour v. Newport News, 12 Va. App. 415, 418 (1991)
(quoting Bateman, 4 Va. App. at 467). This necessarily includes consideration of the claimant’s
perception of his or her condition, abilities, and employability, and of the claimant’s basis for
that perception. See id.
Securitas argues that, contrary to the Commission’s finding, there is “no medical
evidence” in the record to support Gersch’s testimony that she was continually totally disabled
after July 24, 2019. While Gersch’s testimony in front of the deputy commissioner is, in and of
itself, evidence, Securitas continues to assert the Commission’s finding that Gersch was entitled
to total disability benefits after July 24, 2019 is unsupported.
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Russell and AtLee UNPUBLISHED
Argued by videoconference
SECURITAS SECURITY SERVICES USA, INC. AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA MEMORANDUM OPINION* BY v. Record No. 0379-20-3 JUDGE ROBERT J. HUMPHREYS OCTOBER 13, 2020 CAROLYN E. GERSCH
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Roberta A. Paluck (Christopher M. Kite; Lucas & Kite, PLC, on brief), for appellants.
Michael J. Beste (Reinhardt Harper Davis, PLC, on brief), for appellee.
On February 5, 2020, the Workers’ Compensation Commission (“the Commission”)
found that Carolyn E. Gersch (“Gersch”) was properly awarded continuing temporary total
disability benefits as of July 24, 2019. Her employer, Securitas Security Services USA, Inc.
(“Securitas”) now appeals. Securitas contends that no credible evidence exists to support the
Commission’s finding that Gersch was entitled to temporary total disability benefits beginning
January 17, 2019 and continuing until conditions justified a modification thereof.
I. BACKGROUND
On January 10, 2018, Gersch sustained injuries while working as a security officer with
Securitas when she was “trying to open and pass through a heavy gate when she caught her left
foot on a curb, causing her to trip.” On February 22, 2018, Gersch filed a claim for benefits for
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. the same injuries. Shortly thereafter, she began treatment for her left shoulder and left hip
injuries with Dr. Robert T. Wyker (“Dr. Wyker”). Dr. Wyker recommended Gersch undergo
surgery on her left shoulder, which he performed on July 25, 2018. Dr. Wyker placed her on
temporary total disability beginning on the date of shoulder surgery through November 13, 2018.
On January 17, 2019, Dr. Wyker again totally restricted Gersch from work in anticipation
of a total replacement of her left hip. Her hip surgery took place on March 18, 2019. At a
follow-up visit on May 14, 2019, Dr. Wyker noted that Gersch was not to return to work. Gersch
made a subsequent appointment to see Dr. Wyker on June 11, 2019, sooner than her next
scheduled visit, because she “was doing well with essentially no pain until a couple weeks ago
when she started getting increasing discomfort in her left groin.” Dr. Wyker speculated that the
soreness “was soft tissue in nature” and planned to recheck her in four to six weeks.
Dr. Wyker’s notes from the June 11 visit do not reference Gersch’s ability to work.
Prior to the evidentiary hearing, Gersch’s counsel sent Dr. Wyker a questionnaire that
inquired whether she was totally disabled from employment in connection with her injuries.
Dr. Wyker filled out the form and returned it on July 24, 2019, wherein he answered that Gersch
was not totally disabled and was at least able to perform “light duty sedentary type work.”
Twelve days after Dr. Wyker filled out the questionnaire regarding Gersch’s work status,
on August 5, 2019, an evidentiary hearing was held before the deputy commissioner. Gersch
testified at the hearing that she had not been informed by either Dr. Wyker or her counsel that
she was released for sedentary work. Gersch was not “contemporaneously evaluated” by
Dr. Wyker when he replied to the questionnaire nor did she see or talk to Dr. Wyker between
July 24, 2019 and August 4, 2019. The Commission also noted that Dr. Wyker’s questionnaire
response was not filed with it until the evidentiary hearing.
-2- On September 13, 2019, the deputy commissioner awarded Gersch medical benefits for
her shoulder and hip injuries. She was also awarded temporary total disability from July 25,
2018 through November 22, 2018, and temporary total disability beginning January 17, 2019,
and continuing until conditions justified a modification thereof.
On February 5, 2020, the Commission affirmed each of the deputy commissioner’s
findings. Specifically, the Commission found that because the medical record provided no
statement that her work status had changed, Gersch denied knowledge of light duty work release
after July 24, 2019, and the deputy commissioner found her to be a credible witness, Gersch did
not have a duty to market her residual physical capacity. Accordingly, the Commission held the
continuing award of temporary total disability proper. Securitas appeals only the Commission’s
affirmance of the award of total disability on and after July 24, 2019.
II. ANALYSIS
A. Standard of Review
“An award by the Commission is conclusive and binding as to all questions of fact.”
Newport News Shipbuilding & Dry Dock Co. v. Wardell Orthopaedics, P.C., 67 Va. App. 404,
412 (2017) (quoting Ford Motor Co.v. Favinger, 275 Va. 83, 88 (2008)); see also Code
§ 65.2-706(A). Whether a claimant suffers a continuing disability is a question of fact to be
determined by evidence. See Hoffman v. Carter, 50 Va. App. 199, 216 (2007). On appeal, we
view 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 (1990). As such, “[w]e are bound by the
[C]ommission’s factual findings where those findings are supported by credible evidence in the
record,” despite the existence of contrary evidence or contrary evidentiary inferences. Herbert
Clements & Sons, Inc. v. Harris, 52 Va. App. 447, 452 (2008) (quoting Tomes v. James City
Fire, 39 Va. App. 424, 430 (2002) (interpreting Code § 65.2-706)). “The scope of a judicial
-3- review of the fact finding function of a workers’ compensation commission [, therefore,] is
‘severely’ limited, partly in deference to the agency’s expertise in a specialized field.” Southside
Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828 (2000) (alterations in original) (quoting Ga.-Pac.
Corp. v. Robinson, 32 Va. App. 1, 4-5 (2000)).
B. Entitlement to Continuing Temporary Total Disability
A party seeking compensation bears the burden of proving her disability and the periods
of that disability. See Marshall Erdman & Assocs. v. Loehr, 24 Va. App. 670, 679 (1997). The
test for determining whether a claimant failed to make reasonable efforts to market his or her
residual skills and forfeited the right to compensation is not a bright line but rather involves a
multitude of factors. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467 (1987). In
determining what constitutes a reasonable effort to market remaining work capacity, we analyze
the claimant’s efforts both in the context of reasonableness and dependent upon all the facts and
surrounding circumstances. See Ridenhour v. Newport News, 12 Va. App. 415, 418 (1991)
(quoting Bateman, 4 Va. App. at 467). This necessarily includes consideration of the claimant’s
perception of his or her condition, abilities, and employability, and of the claimant’s basis for
that perception. See id.
Securitas argues that, contrary to the Commission’s finding, there is “no medical
evidence” in the record to support Gersch’s testimony that she was continually totally disabled
after July 24, 2019. While Gersch’s testimony in front of the deputy commissioner is, in and of
itself, evidence, Securitas continues to assert the Commission’s finding that Gersch was entitled
to total disability benefits after July 24, 2019 is unsupported.
In this case, there is evidence to support the Commission’s conclusion that Gersch proved
an ongoing disability. Medical records and testimony supported the assertion that on January 17,
2019, Gersch was placed on total disability by Dr. Wyker pending a left total hip replacement in
-4- March and after the surgery, Dr. Wyker continued her out of work status. On May 14, 2019,
contemporaneous to a physical evaluation, Dr. Wyker continued Gersch’s total disability status.
Dr. Wyker saw Gersch again on June 11, 2019, when she reported “increasing discomfort.” He
did not make any notes regarding her disability status at that visit. The first change in her work
status occurred when Gersch’s counsel sent a questionnaire to Dr. Wyker on July 24, 2019,
wherein he disagreed that she was totally disabled and stated that she would at least be able to do
“light duty sedentary type work.” Twelve days later, on August 5, 2019, at an evidentiary
hearing before the deputy commissioner, Gersch testified that Dr. Wyker’s answers to the
questionnaire had not been previously communicated to her.
If evidence, or reasonable inferences drawn from the evidence, supports the
Commission’s findings, they will not be disturbed by this Court on review even if the record
could support a contrary finding. See Advance Auto v. Craft, 63 Va. App. 502, 520 (2014)
(quoting Amelia Sand Co. v. Ellyson, 43 Va. App. 406, 408 (2004)).
Here, the Commission affirmed the deputy commissioner’s finding that the medical
record explicitly detailed Gersch’s no-work status as of May 14, 2019 and lacked any indication
that her total disability changed as of the June 11, 2019 medical evaluation. Gersch testified that
the doctor did not give her a note regarding an updated light duty work status. She stated that
she understood that she was disabled and unable to work up to and until the evidentiary hearing,
when she learned about Dr. Wyker’s questionnaire response. The Commission noted that the
deputy commissioner found Gersch to be a credible witness at the hearing. This evidence,
separately and in the aggregate, supports the Commission’s finding that Gersch was reasonably
-5- unaware she had residual work capacity and was entitled to temporary total disability after July
24, 2019.1
III. CONCLUSION
Because there is credible evidence to support the Commission’s finding that Gersch’s
continuing total disability benefits after July 24, 2019 were proper, it will not be disturbed on
review. For these reasons, the Commission did not err.
Affirmed.
1 Although they assigned no error on this basis, Securitas argues on brief that the Commission improperly applied the Ridenhour test regarding the reasonability of Gersch’s perception that she was totally disabled after Dr. Wyker’s questionnaire response. They contend she had a duty to market regardless of when she because aware of sedentary work release and impliedly assert the Commission erred in finding Gersch made a “reasonable effort” to market her remaining capacity. However, Securitas did not actually assign error to this ruling. Per this Court’s Rules, we address only arguments raised by an appellant’s express “assignments of error” in their brief. See Rule 5A:20(e), cited in Ceres Marine Terminals v. Armstrong, 59 Va. App. 694, 710 (2012). -6-