Sergeants Pet Products v. Charles L Harrison

• Court: Court of Appeals of Virginia
• Decided: January 14, 2003
• Docket: 2360022
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements

SERGEANTS PET PRODUCTS AND CONAGRA FOODS, INC. MEMORANDUM OPINION* v. Record No. 2360-02-2 PER CURIAM JANUARY 14, 2003 CHARLES LEO HARRISON, SR.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Kathryn Spruill Lingle; Theisen & Lingle, P.C., on brief), for appellants.

(Gerald G. Lutkenhaus; The Law Office of Gerald G. Lutkenhaus, on brief), for appellee.

Sergeants Pet Products and Conagra Foods, Inc. (hereinafter

referred to as "employer") contend the Workers' Compensation

Commission erred in finding that Charles Leo Harrison, Sr.

proved that he (1) sustained a change-in-condition, and is

entitled to temporary partial disability benefits commencing

October 13, 2001; and (2) adequately marketed his residual work

capacity. Upon reviewing the record and the parties' briefs, we

conclude that this appeal is without merit. Accordingly, we

summarily affirm the commission's decision. Rule 5A:27.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Disability

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).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

So viewed, the evidence proved that on February 2, 1998,

while working for employer as a packing mechanic, claimant

sustained a compensable crush injury to his dominant right hand.

His pre-injury job required that he operate various machines and

lift rolls of wrap weighing fifty to one-hundred pounds and

place them on machines. He also had to use tools to adjust

nuts, bolts, and screws. Claimant testified that he could no

longer use tools because he did not have enough strength in his

right hand.

On March 12, 1998, Dr. Garpal S. Bhuller released claimant

to return to his pre-injury work.

On November 12, 1998, Dr. Glenn Carwell noted "point

tenderness over apparent neuromas stemming from the radial nerve

on the dorsum of his right hand where they terminate in scar

tissue from the previous lacerations." Dr. Carwell advised

claimant that "this problem might be improved by resecting the

neuromas in transplanting the blind nerve endings to an area

where they would be less likely to be irritated within the - 2 - dorsal interosseous muscles." Dr. Carwell also saw a small

nodule over the volar aspect of the ring finder, which was

either a scar reaction to the injury or a possible giant cell

tumor of the tendon sheath. Dr. Carwell recommended resecting

the mass.

In January 1999, Dr. Raymond Iglecia, Sr., who had been

treating claimant since October 1998, noted claimant's diagnoses

of Reflex Sympathetic Dystrophy of the right hand and chronic

pain disorder. Dr. Iglecia noted that claimant was totally

disabled as a result of his work injury.

On September 1, 2000, Dr. Carwell performed surgery for the

neuromas. On February 11, 2001, claimant returned to

Dr. Bhuller, who noted that there had been little change in

claimant's hand function since 1999, and indicated that he would

determine claimant's work capacity after an evaluation by a hand

therapist.

In March 2001, Dr. Iglecia opined that claimant had

developed classic signs of a chronic pain disorder secondary to

his compensable injury.

On March 16, 2001, Dr. Lawrence Morales gave claimant an

eight percent permanency rating for his right hand causally

related to his February 2, 1998 compensable injury by accident.

On October 24, 2001, Dr. Morales opined that claimant could not

perform his pre-injury work.

- 3 - Claimant's medical records provide credible evidence to

support the commission's conclusion that claimant sustained a

change in condition and is entitled to partial disability

benefits commencing October 13, 2001. The medical records prove

that claimant's pain has worsened; that he underwent surgery in

September 2000, that he received an eight percent permanency

rating in March 2001, and that he is currently unable to perform

his pre-injury work. Accordingly, we will not disturb the

commission's finding on appeal.

II. Marketing

A partially disabled employee is required to make

reasonable efforts to market his residual earning capacity to be

entitled to receive continued benefits. See National Linen

Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989).

"In determining whether a claimant has made a reasonable effort

to market his remaining work capacity, we view the evidence in

the light most favorable to . . . the prevailing party before

the commission." Id. at 270, 380 S.E.2d at 33. "What

constitutes a reasonable marketing effort depends on the facts

and circumstances of each case." The Greif Cos. v. Sipe, 16

Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) (citation

omitted). When the commission's factual determinations are

supported by credible evidence, they will not be disturbed on

appeal. Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217,

220-21, 527 S.E.2d 451, 453 (2000). The commission determines - 4 - the weight to give the various criteria it considers. National

Linen, 8 Va. App. at 272, 380 S.E.2d at 34 (citing relevant

factors).

In ruling that claimant proved he made reasonable efforts

to market his residual work capacity, the commission found as

follows:

[T]he claimant is 63 years old, with an eighth grade education. His employment has always involved work using his hands. The employer gave no job search assistance. The claimant registered with the Virginia Employment Commission [("VEC")], and contacted a number of businesses. He has obtained regular employment performing custodial duties at his church. Under these circumstances, we agree with the deputy commissioner that the claimant is entitled to temporary partial disability benefits.

Claimant provided written documentation of the numerous

employers from whom he sought employment. He testified that he

had been employed by his church providing custodial services

since at least October 2001. He registered with the VEC, which

had not been able to find him a higher paying job. The

commission weighed evidence of the degree of claimant's

impairment, his age, his limited education, his work history,

his marketing efforts, and the lack of job search assistance

from employer. Based upon credible evidence in this record and

taking into account the factors enunciated in National Linen,

the commission, as fact finder, could reasonably conclude that

claimant adequately marketed his residual work capacity. "In

- 5 - determining whether credible evidence exists, the appellate

court does not retry the facts, reweigh the preponderance of the

evidence, or make its own determination of the credibility of

the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App.

890, 894, 407 S.E.2d 32, 35 (1991).

For these reasons, we affirm the commission's decision.

Affirmed.

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