Terrance M. Underwood v. Velocity Construction of Virginia, Inc.

• Court: Court of Appeals of Virginia
• Decided: March 5, 2024
• Docket: 1502222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges AtLee, Ortiz and Lorish UNPUBLISHED

Argued at Richmond, Virginia

TERRANCE M. UNDERWOOD MEMORANDUM OPINION* BY v. Record No. 1502-22-2 JUDGE LISA M. LORISH MARCH 5, 2024 VELOCITY CONSTRUCTION OF VIRGINIA, INC., ET AL.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

W. Joseph Owen, III (Bennette H. Sharpe, IV; Owen & Owens PLC, on briefs), for appellant.

A. Jacob Perkinson (Michael P. Del Bueno; Whitt Del Bueno Clark, on brief), for appellees.

Terrance M. Underwood appeals a decision of the Workers’ Compensation Commission

vacating his award of temporary total disability benefits. He challenges the Commission’s

findings that he was partially disabled rather than totally disabled, that he was not under an open

award, and that he was required to prove a new period of temporary total disability after the

termination of an award order. Underwood also argues that the Commission erred in finding that

he needed to present evidence that he had marketed his residual work capacity. In assignments

of cross-error, Velocity Construction of Virginia, Inc., contends that the Commission erred in

finding that it had not made a specific bona fide offer of light-duty employment to Underwood.

For the reasons set forth in this opinion, we affirm the Commission’s judgment.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1

Underwood worked for Velocity for over two decades, beginning as a carpenter and

eventually rising to the position of superintendent. He oversaw site construction management,

which included payroll and physical labor.

In December 2020, while working for Velocity, he tried to help stand up a wall, but the

wall crashed down on him. As a result, he suffered a broken back, a fractured pelvis, and a

concussion. After a period of recovery, Underwood filed a claim for benefits in April 2021,

requesting wage loss replacement for temporary total disability. A few weeks later, Velocity and

Underwood signed a voluntary agreement form providing temporary total disability benefits to

Underwood for his hip beginning January 4, 2021. In May 2021, the Commission approved the

agreement and retroactively awarded Underwood temporary total disability and lifetime medical

benefits for his hip beginning on the agreed upon date.

Meanwhile, in March 2021, Underwood’s treating physician released him to return to

light-duty work in a sedentary capacity with certain restrictions. At the same time, Velocity

attempted to create a new position for Underwood with responsibilities that would evolve as

Underwood recovered. The new position would be “safety supervisor,” and its accompanying

duties would be CPR and first aid training, forklift and aerial lift training, traveling to work sites,

completing inspections, and conducting various administrative tasks, including paperwork and

payroll. To prepare Underwood, Velocity created a computer-based training program for him to

complete while he was restricted to sedentary work.

1 “On appeal from a decision of the Workers’ Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below.” Anderson v. Anderson, 65 Va. App. 354, 361 (2015) (quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83 (2005) (en banc)). -2- Underwood returned to work as the safety supervisor on April 5, 2021, at which time

Velocity paid his full, pre-injury salary. Velocity required Underwood to email the number of

hours worked per week and his progress with the program. His first training task was to

complete a 30-hour, online OSHA training and pass a subsequent test on that training;

Underwood failed the test three times but passed on his fourth attempt. He completed no other

training.

Underwood sent his work hours to his supervisor three or four times, but eventually

stopped communication. Underwood did not report issues or problems accessing the training

and did not ask for help to access it.

Velocity’s president terminated Underwood’s employment on June 11, 2021. At the

termination meeting, Underwood stated that “he didn’t think he’d come back [to work] anyway.”

Velocity provided Underwood a severance package that included his regular pay through July 2,

2021.

On July 6, 2021, Velocity filed a request for a hearing, asking the Commission to suspend

Underwood’s benefits. Velocity alleged that Underwood had returned to light-duty work on

April 5, 2021 and then refused selective employment within his physical capacity. Velocity also

requested credit for temporary total disability overpayment between April 5, 2021 and April 12,

2021—the period that Underwood had returned to work and was receiving full wages. During

that week, Underwood received both disability payments and wages.

At the hearing, Underwood admitted that he forgot to submit his hours and that he had

been terminated. He testified that he did not refuse to do the training. Underwood stated that he

did not know what job he was being trained for, but he assumed it was for an OSHA inspection

position. As for his physical capacity, Underwood testified that he had been able to travel, drive

long distances, and walk around at a park. He performed around 30 squats per day, went up and -3- down the staircases in his house, walked around a shopping mall, and took trash cans out to the

road. A report from his physician, dated June 1, 2021, said it was “unlikely” Underwood would

ever return to full-duty work but cleared him for several tasks, including sitting continuously,

walking on flat surfaces, standing, kneeling, pushing, and pulling infrequently. He was also

cleared to lift up to 20 pounds sometimes, as well as bend, kneel, squat, twist and turn, drive,

type on a keyboard, and reach above his shoulder.

At the end of the hearing, the deputy commissioner found that Velocity did not make a

specific job offer to Underwood because the nature of the work for the newly-created position

remained uncertain. Accordingly, the deputy commissioner denied Velocity’s request to suspend

Underwood’s benefits based on a refusal of selective employment. But the deputy commissioner

terminated the prior award of temporary total disability benefits for Underwood effective April 5,

2021, because Underwood returned to work that day, and awarded Velocity a credit from April 5

to April 12. The deputy commissioner then held that “benefits pursuant to the [prior award] will

be reinstated after the termination” of Underwood’s employment on June 11, 2021.

Velocity sought review from the full Commission. The Commission affirmed that there

was insufficient evidence that Velocity made a bona fide offer of selective employment to

Underwood, and agreed Velocity was entitled to a credit for the week that Underwood returned

to work. But the Commission found that the deputy commissioner erred by reinstating

Underwood’s temporary total disability benefits after his termination. Because the deputy

commissioner concluded that the prior award of temporary total disability benefits was

terminated effective April 5, 2021, and Underwood did not appeal this conclusion, the

Commission found that the burden had shifted to Underwood to prove he was entitled to a new

award of temporary total disability benefits beginning June 12, 2021. The Commission then

found that Underwood had failed to meet that burden because he presented no evidence that he -4- had marketed his residual work capacity after his termination. As a result, the Commission

vacated the post-termination reinstatement of the award of temporary total disability benefits.

Underwood appeals.

ANALYSIS

Underwood argues that the Commission erred in affirming the deputy commissioner’s

termination of his temporary total disability award based on his physician’s release for him to

return to work, and his actual return to work, in April 2021. He asserts that his “attempt” to

return to light-duty work was “not dispositive” in establishing that he was no longer totally

disabled, because he “clearly evinced a total disability” based on evidence about his existing

ailments before the deputy commissioner. Moreover, given the evidence of his continuing total

disability, Underwood argues that the Commission erred in overturning the deputy

commissioner’s reinstatement of his prior award effective June 12, 2021, the day after

termination. Here, Underwood argues that the deputy commissioner was not issuing a new

award, for which he needed to bear the burden of proving his entitlement. Instead, he asks us to

find that the deputy commissioner only functionally suspended the prior award for the time that

Underwood returned to employment until he was terminated. As a result, it was Velocity who

bore the burden to prove that the award was no longer warranted as of June 12, 2021.

Even if Underwood were correct that the deputy commissioner merely suspended the

prior award for the time period that Underwood returned to work until his termination and that

Velocity bore the burden to prove that Underwood had a change in condition such that he was no

longer entitled to the prior award of total temporary disability as of June 12, 2021, we find that

the result would be the same, because the Commission had credible evidence to support its

conclusion.

-5- In reviewing a decision from the Commission, we are bound by the Commission’s factual

findings as long as “‘there was credible evidence presented such that a reasonable mind could

conclude that the fact in issue was proved,’ even if there is evidence in the record that would

support a contrary finding.” Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83-84 (2015) (en

banc) (quoting Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222 (1988)).

“Consequently, on appeal, ‘we do not retry the facts before the Commission nor do we review

the weight, preponderance of the evidence, or the credibility of witnesses.’” Jeffreys v.

Uninsured Emp.’s Fund, 297 Va. 82, 87 (2019) (quoting Caskey v. Dan River Mills, Inc., 225

Va. 405, 411 (1983)). In contrast, “the [C]ommission’s legal determinations are not binding on

appeal and will be reviewed de novo.” Roske v. Culbertson Co., 62 Va. App. 512, 517 (2013)

(quoting Wainwright v. Newport News Shipbuilding & Dry Dock Co., 50 Va. App. 421, 430

(2007)).

After terminating Underwood, Velocity filed a request for the Commission to terminate

the total temporary disability benefits based on a change in Underwood’s condition. Velocity

argued that termination was justified based on Underwood’s return to light-duty work on April 5,

2021 and his refusal of selective employment within his capacity. “[A] change of condition is

not a new injury but is ‘a change in physical condition of the employee as well as any change in

the conditions under which compensation was awarded, suspended, or terminated which would

affect the right to, amount of, or duration of compensation.’” Vital Link, Inc. v. Hope, 69

Va. App. 43, 57 (2018) (quoting Code § 65.2-101). The party asserting the change in condition

bears the burden “to prove his allegations by a preponderance of the evidence.” Herbert

Clements & Sons, Inc. v. Harris, 52 Va. App. 447, 458 (2008) (quoting Great Atl. & Pac. Tea

Co. v. Bateman, 4 Va. App. 459, 464 (1987)).

-6- Where an injury causes “a loss of earning capacity,” a worker is totally disabled. King

William County v. Jones, 66 Va. App. 531, 541 (2016) (en banc). In contrast, a partially disabled

worker is presumed to be able to “continue working either on restricted duty or in an altogether

new job.” Id. (quoting McKellar v. Northrup Grumman Shipbuilding, Inc., 290 Va. 349, 357

(2015)). “[T]here is no presumption in the law that once a disability has been established, a

claimant will be assumed to remain disabled for an indefinite period of time.” Hoffman v.

Carter, 50 Va. App. 199, 216 (2007) (quoting Marshall Erdman & Assocs. v. Loehr, 24 Va. App.

670, 679 (1997)).

Underwood argues that the deputy commissioner did not terminate the original disability

award and create a “brand new award.” Rather, the deputy commissioner “account[ed] for an

interim period where Mr. Underwood was working.” Thus, “[t]he reinstatement of Mr.

Underwood’s award was not the granting of a new award, but a reinstatement after suspension.”

Assuming without deciding that Underwood is correct, we must determine whether there

was credible evidence before the Commission to conclude that no further award was appropriate

as of June 12, 2021—the day the “new” or “reinstated” award would have begun. Given this

assumption, Velocity (as the moving party) bore the burden to prove a change in condition.

Underwood argues that the Commission relied entirely on his return to work and release

by his physician to light-duty work as the support for a change in condition, which is improper

under Telesystems, Inc. v. Hill, 12 Va. App. 466 (1991). As in this case, the claimant in

Telesystems returned to light-duty work after receiving a prior award of temporary total disability

benefits as a result of a work-related injury. Id. at 468. The employer sought to suspend the

disability payments, which the Commission did, pending a hearing. Id. At the hearing, the

employee argued that his medical condition had not changed, despite engaging in light-duty

work. Id. at 468-69. “Neither party presented any testimonial evidence at the hearing.” Id. at -7- 469. The deputy commissioner agreed that the employer failed to meet its burden, and this Court

upheld that decision on appeal. Id. at 472. We noted that the claimant’s attempt and failure to

return to light-duty work—without more—did “not require a reclassification of his disability

from total to partial.” Id.

Here, the Commission’s finding that Underwood was no longer totally disabled, and was

only partially disabled by the time he was terminated in June 2021, was supported by more than

Underwood’s return to light-duty work. In March 2021, Underwood’s physician released him to

return to light-duty work, restricted to sedentary tasks. It is undisputed that Underwood returned

to light-duty work in April. Within two months, he had progressed enough that he was no longer

medically limited to sedentary tasks. By June 1, 2021, medical records show Underwood was

cleared to sit continuously, and to walk on flat surfaces, stand, kneel, push, and pull infrequently.

Underwood was also cleared to lift up to 20 pounds occasionally, as well as bend, kneel, squat,

twist and turn, and reach above his shoulder. He was also able to drive a car and type on a

keyboard. He testified that he would travel, drive long distances, walk up and down the

staircases in his house, and do around 30 squats a day. There was no lack of evidence to support

Underwood’s change in condition. Cf. Telesystems, 12 Va. App. at 472 (noting the “deficiency”

of evidence where employer had only shown that “employee returned to work at some unknown

wage during the course of his outstanding award”).

Underwood argues that the Commission improperly shifted the burden to him to prove

that he was entitled to a new period of temporary disability. He further argues the Commission

erred when it determined he was partially disabled and therefore required to show that he made a

“reasonable effort to market his remaining capacity to work.” Va. Wayside Furniture v.

Burnette, 17 Va. App. 74, 78 (1993) (citation omitted). The Commission reached this conclusion

because it found that the deputy commissioner had terminated the original disability award, -8- which Underwood failed to appeal to the Commission. Regardless of whether the Commission

was correct that the deputy commissioner had terminated the original award, or whether the

original award was merely suspended, the Commission clearly considered all of the evidence

presented. Indeed, the Commission specifically referenced the reports of the physicians who

released Underwood to light-duty work in both March and June 2021 in its final report. Thus,

the Commission’s decision was supported by sufficient evidence—even assuming the burden

remained with Velocity.

To sum up, even if Underwood is correct that the original award was never terminated,

and instead was only suspended, the Commission’s determination that Underwood was partially

disabled by his date of termination is supported by credible evidence and therefore will not be

disturbed on appeal. Code § 65.2-706(A).2

CONCLUSION

Accordingly, we affirm the Commission’s judgment.

Affirmed.

2 Given our holdings above, Velocity’s assignments of cross-error are moot and need not be addressed. See Hollowell v. Virginia Marine Resources Comm’n, 56 Va. App. 70, 77 (2010) (“It is this Court’s duty ‘to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’” (quoting Harrison v. Ocean View Fishing Pier, LLC, 50 Va. App. 556, 570 (2007))). -9-