VIRGINIA:         03/30/2000

IN THE WORKERS’ COMPENSATION COMMISSION

Published at 79 O.W.C. 24

RAFAEL FLORES, Claimant

Opinion by the

• • • • • • • • COMMISSION

v.                                         V.W.C. File No. 193-57-99

D B & A GENERAL CONTRACTORS, INC., Employer

MONTGOMERY MUTUAL INSURANCE COMPANY, Insurer

Daniel P. Barrera, Esquire

for the Claimant.

Lisa A. Cay, Esquire

for the Defendants.

REVIEW on the record before Commissioner Diamond, Commissioner Dudley, and Deputy Commissioner Dely at Richmond, Virginia.

Flores requests review of the October 27, 1999 Opinion of the Deputy Commissioner, who concluded that the Commission had no jurisdiction over this foreign injury claim.  We Reverse.

Flores alleged that he was employed by D B & A General Contractor, and that he injured his right hand and fingers while attempting to unclog a lawnmower on September 27, 1998.  D B & A General Contractor stipulated that there was an injury by accident on that day, but the employer denied that Flores was an employee of D B & A, or that the claimant was working for the employer at the time of the accident, or that the claimant’s alleged period of disability was supported by the evidence.  It also disputed that the claimant was contemporaneously employed in similar employment, which would serve to augment the claimant’s statutory average weekly wage.  The employer also denied that the Commission had jurisdiction over the accident, which occurred in the District of Columbia.

The Deputy Commissioner addressed only the issue of jurisdiction in her Opinion, and we limit our review to that issue.  In other words, we do not at this stage in the proceedings decide whether or not the claimant was an employee in fact, or whether he was an employee at the time of the accident, or whether he was an independent contractor.  We decide only that the Commission has subject matter jurisdiction to consider such facts.

Va. Code Ann. 65.2-508 provides, in pertinent part, that,

A. When an accident happens while the employee is employed elsewhere than in this Commonwealth which would entitle him or his dependents to compensation if it had happened in this Commonwealth, the employee or his dependents shall be entitled to compensation, if:

1. The Contract of employment was made in this Commonwealth; and

2. The employer’s place of business is in this Commonwealth; and provided the contract of employment was not expressly for service exclusively outside the Commonwealth.

In order to establish our jurisdiction, the claimant has the burden to prove that he satisfies all these factual prerequisites.

The claimant had worked for D B & A General Contractors at an earlier time, and he was working in early 1998 for another employer.  The uncontradicted evidence establishes that Carl Bernstein, the corporate president of D B & A, telephoned the claimant at his [the claimant's] home in Alexandria, Virginia in January or February 1998 to request that Flores return to work with D B & A on weekends.  The claimant accepted.

Flores testified that he understood that he was to work for D B & A at various locations in Virginia, and also in the District of Columbia.  Bernstein testified that the claimant worked for D B & A only in Virginia, and that the work Flores performed in the District was work performed for him [Bernstein] personally.  The claimant suffered his injury while performing work for Bernstein in the District.  Flores testified that approximately 80% of his work was performed in Virginia, and the rest in the District, while Bernstein estimated that 70 – 80% of the work was performed in the District.

The Deputy Commissioner held that the Commission lacked jurisdiction for this foreign injury, because “the majority of the work done by the claimant was in D.C.”  This implicitly acknowledged the undisputed fact, even if the testimony of the employer was accepted without question, and even if the documentary evidence produced by the employer pursuant to discovery was incomplete, that at least some of the work was to be performed in Virginia.  The pertinent language of Code 65.2-508(A)(2) clearly instructs that jurisdiction lies if “the contract of employment was not expressly for service exclusively outside of the Commonwealth.”  In other words, where the employee is assigned to perform any work in the Commonwealth, however deminimis, we have jurisdiction.  Here, the employer himself testified that the contract of employment was for work to be performed in Virginia, so we certainly have jurisdiction.  Jurisdiction would still lie if the employee is assigned work outside Virginia, pursuant to his contract of employment.  The Deputy on Remand will have to make that determination.

We note here that the Deputy Commissioner in her Opinion did not address the other elements of Code 65.2-508.  In the interests of judicial economy, and because the evidence presented at the evidentiary hearing was clearly dispositive as to these questions, we will rule on them on Review.

We first consider whether the contract of employment was made in Virginia:

Under familiar principles of conflicts law, when the acts “which constitute offer and acceptance are scattered over more than one state . . . [t]he authorities are reasonably clear that, in this event, the contract is made at the same time and place “where the last act necessary to the completion of the contract was done – that is, where the contract first creates a legal obligation.”  American Conflicts Law, Robert A. Leflar, et al., @ 145, at 408-09 (4th ed. 1986) (citing 1 A. Corbin, Contracts @ 55 et seq. (1963); 1 S. Williston, Contracts @ 97 (W. Jaeger 3d ed. 1957); Restatement of Contracts @ 74 (1932)).

Tummino v. Fleet Transit, Inc., VWC File No. 186-97-73 (April 23, 1999).  An oral contract of hire made in Virginia is effective for the purposes of Code 65.2-508.  Whitley v. Cardinal Freight Carriers, Inc.,  VWC File No. 166-03-27 (November 9, 1994), citing Locastro v. Power Specialists, Inc., VWC File No. 136-32-58 (September 6, 1989).  Here, where the employer effectively came to Flores’ home, in this case by telephone, and made a job offer, the acceptance by Flores at that time constituted the completion of the contract of employment.  Thus, we find that the early 1998 contract of employment with Flores was made in the Commonwealth.

No ore tenus evidence was presented to establish that the employer had a place of business in Virginia.  However, the claimant filed W-2 Tax Forms, time logs, and cancelled checks from the employer as evidentiary exhibits, which established that D B & A had places of business in McLean and in Manassas Park, Virginia.  Even if these were established for bookkeeping and administrative purposes only, it sufficiently satisfies the requirements of Code 65.2-508.  See CLC Construction, Inc. v. Lopez, 20 Va. App. 258, 456 S.E.2d 155 (1995).

Accordingly, upon consideration of these facts, we REVERSE the October 27, 1999 Opinion of the Deputy Commissioner.  We hold that the Commission does have jurisdiction under Va. Code Ann. 65.2-508 to determine whether Flores was an employee of D B & A General Contractors at the time of his accident on September 27, 1998, and to decide to what extent he is entitled to benefits under the Virginia Workers’ Compensation Act.  This case is therefore REMANDED to the Deputy Commissioner for an expedited opinion on the merits of this claim and all other questions that remain undecided.¹

This case is REMOVED from the Review Docket.

¹ This is an interlocutory opinion only, since we have decided only the jurisdictional issue and have Remanded the case for a determination on the merits of Flores’ Claim For Benefits.  See Uninsured Employer’s Fund v. Harper, 26 Va. App. 522, 495 S.E.2d 540 (1998).

VIRGINIA     01/20/00

IN THE WORKERS’ COMPENSATION COMMISSION

JUAN A.  HERNANDEZ,  Claimant

Opinion by TARR

Commissioner

v.                                                                                                                            Claim No.   194-63-68

C D CARPENTRY, INC.,  Employer

CINCINNATI CASUALTY COMPANY,  Insurer

Daniel P. Barrera, Esquire

for the claimant

William E. Glover, Esquire

for the defendants

REVIEW on the record before Commissioner Tarr, Commissioner Diamond and Commissioner Dudley at Richmond, Virginia.

The employer requests Review of the Deputy Commissioner’s September 3, 1999, Penalty Order assessing a 20 percent penalty pursuant to Code 65.2-524, for compensation not paid within two weeks after it became due commencing on June 9, 1999.  The employer argues that because the claimant returned to work at his pre-injury average weekly wage on June 10, 1999, it was entitled to cease payments under the claimant’s open Award.  We VACATE.

On February 23, 1999, the claimant filed an application for benefits alleging an injury by accident on January 28, 1999, and seeking continuing temporary total disability benefits and medical benefits.  On March 31, 1999, the parties submitted a Memorandum of Agreement stating that the claimant was entitled to continuing temporary total disability benefits commencing January 28, 1999, based on a pre-injury average weekly wage of $524.71.  On August 6, 1999, the Commission entered an Award Order based on the March 31, 1999, Memorandum of Agreement, for payment of continuing temporary total disability compensation and medical benefits beginning January 28, 1999.

The employer alleges that in the meantime, on June 10, 1999, the claimant returned to work at a wage equal to or greater than his average weekly wage.  The employer supports this claim with a September 22, 1999, affidavit from its office administrator.  The employer filed an application for a change in condition on September 24, 1999, alleging a return to work on June 10, 1999.  That application is still pending.

In a letter filed August 23, 1999, counsel for the claimant advised the Commission that despite the August 6, 1999, Award Order, “the carrier has not paid the claimant any compensation since approximately June 9, 1999.”  Claimant’s counsel requested an assessment of a 20 percent penalty on the unpaid compensation.  By Order of September 3, 1999, the Deputy Commissioner assessed a 20 percent penalty pursuant to Code 65.2-524 on all compensation more than two weeks in arrears.

In its written statement, the employer argues that during the period between June 9, 1999, and June 24, 1999, it attempted to obtain the claimant’s signature on an Agreed Statement of Fact terminating the existing open Award based on the claimant’s return to his pre-injury work.  The claimant did not sign the agreement.  The claimant’s counsel then informed the employer that the claimant was again temporarily totally disabled due to his work injury.  The employer blames its non-payment of benefits from June 10, 1999, to June 24, 1999, on the claimant’s failure to execute this agreement.¹

Code 65.2-524 provides that: “If any payment is not paid within two weeks after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof.”  The language of Code 65.2-524 is mandatory, and its application has been strictly applied.  The legislature has clearly and unambiguously provided for a 20 percent penalty when payment of benefits is not timely made, regardless of the fact that there may be a good excuse for the late payment.  See Sanderson v. Corrections Adult Services, VWC File No. 164-78-40 (May 30, 1996).

There are three ways to terminate an award:  (1) by the claimant’s execution of an Agreed Statement of Fact; (2) by the claimant’s execution of a Supplemental Memorandum of Agreement; or (3) by the employer’s filing of an appropriate application to terminate benefits.  Smith v. Earl Haines, Inc., 62 OIC 422 (1983).   Despite the employer’s alleged efforts, the claimant failed to execute the Agreed Statement of Fact.  Therefore, the employer needed to file an application to terminate benefits.  It did so, on September 24, 1999.  Commission Rule 1.4 C 1 requires payment to date of return to work.

The employer was not required to make any payments after June 9, 1999, because of the pending Application for Hearing.  If the Application is granted, then no further benefits or penalties are owed.

The employer voluntarily reinstated temporary total benefits on June 24 so the disputed period is June 10 to June 24, 1999.  It appears that this issue might be resolved without the necessity of either an evidentiary or an on the record hearing.

The Deputy Commissioner’s September 3, 1999,  Penalty Order is VACATED.  This case is referred to the Commission’s mediation section.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within

thirty days from receipt of this Opinion.

¹ The employer also concedes that the claimant is entitled to temporary total disability benefits from June 24, 1999.  The employer has paid and continues to pay these benefits since September 1999.

VIRGINIA:         09/22/2000

IN THE WORKERS’ COMPENSATION COMMISSION

JOSE LEONEL CANALES, Claimant   Opinion by DIAMOND

Commissioner

• 1. VWC File No. 195-67-77

THE ROOFING CENTER, INC., Employer

WAUSAU UNDERWRITERS INSURANCE COMPANY, Insurer

Daniel P. Barrera, Esquire

for the claimant.

S.T. Mullins, Esquire

for the employer.

Susan A. Evans, Esquire

for the insurer.

REVIEW on the record before Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.

Each party seeks Review of the Deputy Commissioner’s February 2, 2000, Opinion. Because the record was thoroughly developed and the issues thoroughly briefed in this case, we decline the defendants’ request to present oral argument on Review.  Code  65.2-705(B); Barnes v. Wise Fashions, 16 Va. App. 108, 112, 428 S.E.2d 301, 303 (1993).

On March 17, 1999, the claimant, a roofer’s helper, fell approximately 30 feet from a roof while working for the employer delivering wooden roofing shingles.  At the November 1, 1999, hearing, the parties stipulated that the claimant sustained injuries to his head, right shoulder, face, collarbone, and left leg, and that these injuries occurred “in the course of” his employment.  The parties further stipulated that the claimant was totally disabled because of the accident.  In addition to a willful misconduct defense, the defendants asserted that the accident did not “arise out of” the claimant’s employment, but was an unexplained fall.

The claimant testified that he worked for the employer since August 1995.  He stated that he was familiar with the employer’s safety rules, and that the employer taught him how to go up on a roof safely.  He further stated that he was aware that he was required to be “tied off” the entire time he was on the roof, and that tying off was specifically addressed at safety meetings.  He testified that he has never been reprimanded or disciplined by the company for not following the rules.  He received the company’s “Helper of the Year’ award in 1996 for following all of the company’s rules.  He explained that he earlier injured his lower back when he fell off of a roof, but that his fall was arrested by proper use of a safety harness.

The claimant testified that he could recall climbing up to the roof at the worksite on March 17, 1999, and that he was wearing a safety harness attached to a safety line. He explained that the safety line connects to the safety harness by means of a clip attached to the safety line, which is itself then clipped to a ring on the back of the safety harness located behind the claimant’s head.  He stated that he could not see whether the clip was hooked properly to the harness because it attaches behind him, but that he checked with his hand to make sure it was attached, though he did not tug on the safety line.

With regard to tying off the safety line that day, the claimant testified that all he could remember was tying off to the employer’s “boom,” or crane, once he was on top of the house.  He stated that after he tied off to the boom, the other end of the safety line was attached to the back of his safety harness. He denied using roof brackets on the roof, but heard them discussed at safety meetings, and was aware that brackets were kept in the truck. The claimant testified that he has no recollection of having removed or unclipped his safety line while he was on the roof, and he could think of no reason that he would do so. He testified that he could perform his entire job without unhooking his safety line.  The last thing prior to the accident that he could recall was taking a bundle of shingles to a particular place on the roof.  When questioned whether he knew what caused him to fall, he answered “No.”

Morris Gomez worked for Shiner Roofing on March 17, 1999, and testified that he witnessed the claimant unloading cedar shingles from a truck.  Mr. Gomez was on the roof, and he first noticed the claimant when he arrived in the employer’s truck.  He testified that the roof of the house was “a little bit steep,” and stated that the old shake roof shingles were wet from a rain the night before.  He noticed that the claimant was wearing a safety harness, and that when he started working, his safety harness was attached to the boom with a safety line.  He worked with the claimant unloading the shingles for about a half an hour before the accident. He stated that the claimant had two safety lines connected together because “one wasn’t long enough to reach the spot where they were going to unpack everything.”

Mr. Gomez testified initially that he saw the claimant fall.  He stated that the last time he saw the claimant before the accident, the claimant’s safety harness was connected to the safety line, which in turn was attached to the boom. He testified that approximately one minute passed between the time he last saw the claimant and the fall.  During this minute, Mr. Gomez was walking towards the boom to get another bundle of shingles. He described what happened next as follows:  ”I heard him scream and then I saw him slide down, and then I came to notice that he wasn’t attached.” He testified that he saw the claimant slipping down the roof and heard him yelling “Hey! Hey!”  The safety line was not attached when the claimant fell. It remained on the roof, attached only to the boom. When asked what he believed caused the claimant to fall, Gomez testified as follows:

• He was trying to move the shakes from one side to the other so that he could make more room for the things that were — for the ones that were on the truck. Then he turned around and moved toward a spot that we had not fixed yet that was wet. And then that is how he fell down.

On cross-examination, however, Mr. Gomez conceded that he did not see the claimant during the one minute that he was walking to get the shingles, that he did not see the claimant start to fall, and that when he first noticed him he was already falling. He testified that the claimant slid for about 10 seconds before falling off the roof.

Jesus Ramos testified that he worked for Shiner Roofing on March 17, 1999, and was also present when the claimant fell.  He stated that the roof being worked on was steep, and that the wood shingles were wet.  He was working on the roof, and observed the claimant climb up to the roof.  He explained that the claimant was wearing a safety harness that was connected to a “rope,” which in turn was connected to the boom.  Mr. Ramos testified that although he did not see the claimant actually attach the safety line, he noted that the claimant was “always”connected to it.  Mr. Ramos stated that he did not see the claimant fall, but noted that he was still wearing the safety harness after his fall. He stated that the safety line was not attached to the claimant’s harness, but remained attached to the boom from the employer’s truck. Although he did not specifically inspect the claimant’s harness, he did not see anything broken or inoperable about it.

Manuel Jiminez testified that he worked for the employer and supervised the crew delivering materials for the employer on March 17, 1999.  He worked with the claimant for approximately one year, and worked with him that day.  He testified that the claimant had a “really good” reputation for safety.  He never reported or reprimanded the claimant for failing to follow safety rules.

Mr. Jiminez testified that on March 17, 1999, wooden shingles were moved from a truck to the roof by means of a conveyor built into the truck. The claimant was assigned to climb to the roof and move the shingles as they came up the conveyor.  He stated that the house was two stories high in the front, but because of the basement level, it was about three stories high in the back.

Mr. Jiminez testified that he saw the claimant put on his safety harness.  To his knowledge, there was nothing wrong with the harness.  He observed the claimant climb to the top of the roof, unattached to a safety line, and, once there, attach one end of the safety line to his harness and the other end to the boom.  He knew of nothing wrong with the safety line. Once the claimant attached the clip, Mr. Jiminez did not see the claimant disconnect from the safety line.  He stated that he could think of no reason why an employee would unhook the safety line from the harness once on the roof.

He testified that the crew usually did not use two safety lines connected together, but sometimes they would if there were two in the truck. The employer’s safety lines were either 20 or 30 feet in length. There were two available to the claimant on that day because Mr. Jiminez himself was unable to climb up on the roof and help him.  He explained that two safety lines might be used together to reach further down the roof, because the weight of the shingles delivered to only one spot on the roof would be too heavy for the house to bear.  He testified that the decision to use one or two safety lines was left up to the person who is to be up on the roof.  He was not aware that anyone working for the employer had ever been disciplined for using two safety lines together.

The last time Mr. Jiminez saw the claimant before the accident was shortly after the claimant tied off to the boom.  He did not see the claimant fall, but testified that the other men on the roof told him that the claimant had fallen.  When he went over to find him lying on the ground, Mr. Jiminez observed that the claimant was still wearing his safety harness, but there was no safety line on the ground.  He testified that he examined the claimant’s harness after the accident and found it to be in good condition.  Specifically, he found the ring where the safety line attaches to be in good condition. He could not say how long he spent examining the harness, but admitted that he examined it right before he took it off the claimant.  The claimant was unconscious and bleeding at the time.  Once he took the harness off of the claimant, he believed he placed it in a toolbox.  He did not know what happened to it after that.

Larry Paige testified that he is currently Assistant Manager for the employer, but that in March of 1999 he worked as a dispatcher.  Mr. Paige testified that on March 17, 1999, he heard that the claimant had fallen, and he immediately went to the scene of the accident. He testified that when he arrived, he went up on the roof of the house.  He stated that he found two safety lines connected together, which in turn were connected to the employer’s conveyor or boom. There was no roof bracket present.  Mr. Paige testified that he was concerned because a roof bracket was necessary on that job.  He stated that they were allowed no more than a 6-foot free fall.  Therefore, in order to have no more than a 6-foot fall on one safety line from anywhere on the roof, you needed a roof bracket in the middle of the roof.  He opined that with the two safety lines connected together, the claimant would have hit the ground even if the safety lines had been properly connected to his safety harness.

Mr. Paige testified that when he climbed up to the roof, he used the same safety line that the claimant had been using to attach a roof bracket in the middle of the roof.  He then attached the safety line from the bracket to his own safety harness, and he noted nothing wrong with the safety line when he used it.  He estimated that that the roof was between 30 and 40 feet long, and the claimant’s fall had been about three stories or between 20 to 30 feet.  He then took photographs of the accident scene for the employer’s safety manager and the police.

William Alley testified that he was the employer’s Safety Manager, and had held that position since 1993.  Mr. Alley testified that he trained all newly hired employees and, if they are Spanish speakers, he has a translator present for the training.  Safety rules have been translated from English to Spanish as well.  The claimant last underwent a review of fall- protection rules on February 20, 1999.  Mr. Alley testified that the job site safety rules were enforced, and he described in detail how he performed site inspections and explained the penalties for particular rule infractions.  He explained that if he arrived at a job site and an employee was found not wearing his or her fall protection, “they are terminated right on the spot.” The harsh penalties for fall protection equipment violations were imposed for violations of the 100% tie-off rule, failure to use roof brackets, and having no more than a 6-foot free-fall on a safety line.

Mr. Alley testified that he received a call informing him that a fall had occurred, and he immediately drove to the site. When he arrived, a Fairfax County Police officer took him to the place where the claimant had fallen, but would not let him on the roof until their investigation was complete.  He testified that he could see from ground level the two safety lines as they lay on the roof. He noted that they were clipped to the employer’s conveyor.

Mr. Alley described the clips on the safety lines as “double safety lock clips.” He explained that in order to open the clip, it was necessary to compress the back of the clip first, before the front clip would open.  Therefore, both the front and the back of the clip must be compressed at essentially the same time to open the clip fully.  Mr. Alley agreed that the claimant could not see the ring to connect the safety line, but added that he could tell if it were attached properly by pulling on it.  He testified that it was unlikely that the claimant improperly attached the safety line clip to the ring on his harness because, due to its heavy weight and steel construction, it would have fallen to the roof at some point during the claimant’s extended period working on the roof.  Mr. Alley testified that it was unlikely that the webbing of the safety line would get caught in the clip, or that the clip would improperly attach to the ring on the harness.

Mr. Alley testified that being on the roof without a safety line attached to the safety harness “violates our fall protection program completely.”  He stated that it was permissible to tie the harness off to the end of the boom if the boom extended to the peak of the roof.  Otherwise, the employees were required to establish an anchor point with a bracket.  He explained in some detail how a roof bracket allowed employees to safely work further away from the boom.  He noted that in the present case, however, the boom only extended to the garage area, not to the peak of the main roof from which the claimant fell.  There was no evidence that the crew had been using roof brackets.

Mr. Alley admitted that he had no evidence that the claimant voluntarily disconnected his safety line that day.  However, he stated that he determined that the claimant violated a known safety rule because he was, in fact, disconnected from his safety line when he fell.  Mr. Alley testified that connecting two safety lines was not a violation of a safety rule or regulation if the safety line as a whole does not allow more than a 6-foot free fall from the roof area.  He noted that in the present case, the two safety lines together would have resulted in more than a 6-foot free fall. On cross-examination, however, Mr. Alley conceded that the 6-foot free fall rule was not contained in the company’s safety rules, stating that he verbally instructed them on it. He agreed that there were no written Spanish translations of the verbal safety rules.

Daniel Worley, a regional operations manager for the employer, testified that he went on the roof at the accident site after the claimant’s fall.  He found two safety lines on the roof, but could not recall whether they were hooked together.  He testified that there was no safety rule regarding hooking lines together. He stated that he inspected the safety line on the roof when he hooked himself onto the one that was connected to the boom.  By the time he got on the roof, the other line used by the claimant was hooked to a roof bracket, which had been placed on the roof following the accident and was being used by Larry Paige.  He acknowledged that the 6-foot free fall rule was not written in the safety rules, but added that it was stressed to their employees at every safety meeting.  The employer’s rules stated that employees must tie off at the peak of the roof and remain tied off at all times.  He further testified that the length of one line was insufficient to reach from the boom to the point where the claimant fell.

When asked if he had any evidence that the claimant intentionally removed the safety line from his harness, Mr. Worley testified that it was obvious that the claimant was unhooked because he fell without a line connected to his harness. According to Mr. Worley, the line must manually be removed.  He conceded, however, that this assumed that the safety line had been properly connected to the harness in the first place.  Mr. Worley was not aware of any defect in the safety equipment.  He also stated that he was aware of no witness who observed the claimant disconnect his safety line while on the roof.

The defendants argue that the claimant’s accident was an “unexplained fall” and therefore non-compensable.  According to the defendants, this case is indistinguishable from PYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996), in which the Court of Appeals reversed an award of benefits to an employee because the employee’s injuries were the result of a “noncompensable, unexplained accident.”

Harris involved a truck driver who was injured when he fell out of his cab.  Although he did not recall how he fell, some of the theories advanced included that he was “coldcocked,” that he slipped on ice covering the truck’s cab, and that he suffered “cardiac irregularity, decrease of glucose in the blood, dizziness, or slipping while he exited the truck.”  22 Va. App. at 220, 468 S.E.2d at 690.  The court rejected the Commission’s conclusion that the height and iciness of the truck cab were an “added risk” of his employment and therefore the cause of his fall, reasoning that to so conclude would effectively create a presumption that the fall was caused by the employment.

Here, however, the claimant’s fall was not “unexplained.”  Unlike the employee in Harris, whose fall out of a truck cab was not witnessed and who could not recall the specifics of the fall, the claimant slipped down a steep, damp roof for ten seconds and fell from the end of the roof for 30 feet.  A fellow employee witnessed him slipping down the roof.  If any element of this accident is “unexplained,” it is why the claimant initially began slipping.  Regardless, he slipped, and at the end of his slip, he fell 30 feet and severely injured himself.

The Court of Appeals explained in Harris why the fall from the truck cab was not compensable as follows:

• [I]f the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment.  But [the arising out of test] excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.

Id. at 222, 468 S.E.2d at 691 (citations omitted).  Applying this analysis, the court concluded that the employee failed to prove that the fall from the truck was caused by his employment.  The truck’s iciness and height, standing alone, did not “establish the basis for the fall,” nor was there any evidence that the claimant “slipped or tripped” or “lost his grip.”  Id. at 224, 468 S.E.2d at 692.

Here, on the other hand, the claimant’s fall was witnessed.  It occurred after the claimant slid down the steep, damp roof for approximately ten seconds.  Moreover, there can be no doubt that the claimant would not have been equally exposed to a thirty-foot fall apart from his employment as a roofer’s helper.  Therefore, we conclude that the claimant established that the March 17, 1999, accident arose out of the employment.

We next turn to the employer’s willful-misconduct defense.  The claimant argues on Review that the deputy commissioner erred in concluding that the employer met its burden of establishing that the March 17, 1999, accidence was caused by the claimant’s willful misconduct.  The deputy commissioner found that the “uncontradicted evidence establishes that the claimant was not wearing a safety line while working on the roof, as required by the employer’s safety rules, when he fell on March 17, 1999.”  This finding was based on the fact that the claimant’s safety harness was not hooked to the safety line when he was found after the fall.  The safety rule at issue was the requirement that employees remain tied-off at all times while working on a roof.

Three eyewitnesses to the claimant’s actions immediately preceding the fall each testified that they saw the claimant tied off while he was on the roof.  The deputy commissioner found, however, that the claimant must have unhooked himself, reasoning that his testimony that he did not unhook from the safety line before the fall was not credible, and that circumstantial evidence supported a conclusion that there was no defect in his safety equipment.  According to the deputy commissioner, the claimant “presented no evidence to explain why his lanyard was not attached to his harness” when he fell.

We believe the deputy commissioner incorrectly placed the burden of proof of this issue on the claimant.  The evidence clearly established that the claimant was tied-off shortly before his fall.  That the claimant was next found on the ground without being attached, as well as the safe and sturdy design of the safety equipment, albeit not the actual equipment used by the claimant when he fell, was the only evidence to support the conclusion that the claimant intentionally unhooked himself.  The employer asks us to speculate that the claimant unhooked himself, but it is just as reasonable to speculate that the claimant incorrectly hooked himself up.  Accordingly, we find that the employer did not meet its burden.

Moreover, Code 65.2-306 requires the employer to show that the willful misconduct caused the claimant’s injury.  The evidence established, however, that even if he had been tied off, the claimant would have been injured in the fall.  The length of the safety line was such that the claimant would have struck the ground even if connected.

Finally, the deputy commissioner correctly concluded that the employer failed to enforce the safety rule in question.  The claimant’s supervisor testified that he witnessed the claimant, as he ascended to the roof on March 17, 1999, fail to connect to the safety line, but then tie off to the boom after he reached the roof.  The safety rule, however, required employees to be tied off at all times, including while ascending to a roof.  Thus, on the date of the accident, the employer did not enforce the safety rule that the claimant allegedly violated.

For these reasons, the decision by the deputy commissioner that the claimant was entitled to workers’compensation benefits for the March 17, 1999, accident is AFFIRMED.

This matter is removed from the review docket.

TARR, COMMISSIONER, Dissenting:

I respectfully dissent.

The Commission improperly relies upon the testimony of Morris Gomez to find that the claimant slipped on a steep, damp roof, which was a condition of his employment.  This factual conclusion is mere inference and not based upon the actual testimony of the witness.  Mr. Gomez did not observe what caused the claimant’s fall.   He was not watching the claimant when the fall started.

What occurred at the precise moment when the claimant initially began to fall is the essential inquiry in this case. No witness presented testimony regarding what occurred at this critical moment. The claimant candidly testified that he did not know what caused him to fall.

The majority assumes the fall was caused by a slip on the wet roof because the claimant was slipping down the roof when Gomez turned to observe the claimant after the fall began.  Under this assumption, any fall from a roof would be compensable.  This analysis is suggestive of the positional risk doctrine and ignores the distinction between idiopathic and unexplained falls so carefully set forth by the Court of Appeals inPYA/Monarch v. Harris, 22 Va. App. 215, 468 S.E.2d 688 (1996).

Because the claimant failed to produce any evidence of what actually caused him to fall, it is impossible to conclude that the requisite causal connection between the claimant’s employment and the accident has been established.  For these reasons, I would REVERSE the Deputy Commissioner’s Opinion that the claimant’s accident arose out of his employment.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty (30) days of receipt.

VIRGINIA:            04/09/2002

IN THE WORKERS’ COMPENSATION COMMISSION

Settled Pending Appeal

ANGEL MANUEL GARCIA (Deceased), Employee

ELVIRA ALVARENGA, Claimant

Opinion by DIAMOND

Commissioner

v.                                                                                                                             VWC File No. 202-37-47

W M SCHLOSSER CO., INC., Employer

PENNSYLVANIA MFG. IND. INS. CO., Insurer

Daniel P. Barrera, Esquire

for the Claimant.

Frederick T. Schubert, II, Esquire

for the Defendants.

REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.

The claimant requests Review of the deputy commissioner’s April 26, 2001, Opinion.  Angel Garcia suffered fatal injuries in a compensable accident on January 12, 2000.  The claimant, Garcia’s mother, sought death benefits from the employer, alleging that she was a parent in “destitute circumstances” under Code 65.2-515(A)(4).  The deputy commissioner found that the claimant did not meet her burden of proof and denied benefits.  We REVERSE.

Garcia was working on a roof on January 12, 2000, when he fell 40 feet, suffering multiple severe injuries, including a depressed skull fracture.  Garcia died as a result of these injuries on January 15, 2000.  The claimant, who is a citizen of Honduras and lives there, traveled to the United States on a tourist visa in November 2000 and testified in a hearing conducted in this matter on March 16, 2001.  According to her testimony, she was scheduled to return to Honduras at the end of March 2001.

The claimant, 53 years old, testified that she received three years of schooling and has worked, selling clothes from her home, until 3 years ago when she quit working because of her poor health.  Her children, all adults, live in the United States.  She lives with her infant granddaughter and, until her son’s death, her son’s girlfriend and that woman’s three children.  She stated that she supported her granddaughter with financial assistance from the child’s mother, the claimant’s daughter.

The claimant testified that she has suffered from poor health since 1990.  She was diagnosed with “nervous tension and headaches and fainting” and also described suffering convulsions.  She received treatment for these conditions in Honduras, and after coming to the United States in November 2000, has been diagnosed with and treated for diabetes and hypertension.  She stated that she has been unable to work because of her health for three years.

The claimant described her living conditions.  Her residence was in a small town, “like the country.”  It had two bedrooms, a kitchen, and a living area, and was still in a state of being constructed.  It had electricity and water, but no bathroom or hot water.  The claimant cooked on a wood stove.  She also described having some furnishings, including a sofa, coffee table, table, chairs, bed, television, refrigerator, and freezer.  She stated that she began building the house on land she purchased for $2,000 in 1979.  She stated that the remaining construction on the house consisted of “roof, paint, and the wall.”

The claimant also described her monetary assets and income.  Basically, she relied on her adult children for her support.  She was required to collect approximately $7,000 to hold on deposit before she could acquire a tourist visa.  She stated that her daughter forwarded her this money, over time, which she stated was held in her name but belonged to her daughter.  She stated that she did not use this money for personal reasons.  She described the income she received from her children, which was irregular and of varying amounts.  Her sister, a resident of El Salvador, testified that she had, on occasion, delivered money to the claimant from her children for a fee.  She had records from July 1999 through January 2000, showing deliveries to the claimant totaling $2,660 for this period.

The claimant estimated that her monthly expenses were $350, including $100 per month for a freezer purchased on credit after Garcia’s death.  When asked how she would support herself when she returned, the claimant responded, “I don’t know.”  She stated that she relied on friends, family, and neighbors for transportation for medical treatment.

Under Code 65.2-307, when an employee suffers an “injury or death by accident” caused by his or her employment, the employee and his or her “personal representative, parents, dependents or next of kin” are unable to seek a remedy under common law for the injury or death.  Instead, these persons are provided a remedy under the Act, set forth in Code 65.2-512 & -515, in exchange for their common-law remedy.  Briefly, the Act allows a parent of a deceased employee to collect death benefits, based on the employee’s average weekly wage, if the parent was dependent on the employee.  The parent is presumed to be dependent if it is shown that the parent was in “destitute circumstances.”

In Bagwell v. Doyle & Russell, 187 Va. 844, 48 S.E.2d 229 (1948), the Supreme Court examined the factors to be evaluated in determining whether a parent of a deceased employee was in “destitute circumstances.”  In Bagwell, a father of a deceased employee sought death benefits.  The evidence showed that the father was married and basically supported by his wife and children.  He suffered from several physical ailments, but was capable of light work.  He had two unmarried adult children living with him “with sufficient income to provide for his support.”  Id. at 849, 48 S.E.2d at 231.

The Court was persuaded, however, that the father showed that he was in destitute circumstances.  The Court reasoned that despite the father’s physical ability to perform light work, his lack of education and experience were a bar to any “reasonable hope of employment.”  Moreover, his physical condition and age “undoubtedly impair[ed] his ability and undermine[d] his endurance.”  The Court also established that the standard to be used in evaluating these factors was whether the father was capable of “earning his livelihood.”  Id. at 852-53, 48 S.E.2d at 233.

As for the contribution of the father’s wife and children, the Court declined to consider this potential income, reasoning that such support “by no means insures the parent a continuous livelihood for any definite period.”  The Act, on the other hand, allowed (at that time) for a reasonably comfortable livelihood for nearly six years.  It is not accompanied by contingencies or uncertainties.  We think it was the intent of the Act to provide this security.  Id. at 854-55, 48 S.E.2d at 234.  The Court found justification for its holding in the Act’s prevention of the father from pursuing a common-law remedy against the employer.

In Covey v. Suburban Masonry, 70 O.I.C. 184 (1991), the Commission examined facts similar to those present here.  There, a deceased employee’s parents were found to be “parents in destitute circumstances.”  The parents were able only to earn “meager earnings” and the father was unable to work because of poor health.  The mother earned minimal wages from two jobs and supported her husband and a minor child with those earnings.  In finding that the parents were in destitute circumstances, the Commission was particularly persuaded by the parents’ financial vulnerability, reasoning as follows:  “A family of three which has earning potential allowing it to eke out no more than a bare existence with no resources to provide against natural or inevitable emergencies such as medical emergencies or breakdown of transportation, heating, or electrical systems, is properly described as destitute.”  Id. at 188.

In this case the evidence showed that the claimant has not been gainfully employed for three years because of her health.  Her testimony that she has suffered from poor health was corroborated by the treatment she has received since coming to the United States for diabetes and hypertension.  We note that both of these conditions typically require frequent, regular follow-up treatment, and the claimant has no health insurance.  Moreover, even if the claimant were considered capable of working, her only work has been bartering clothing from her home.  She is 53 with three years of education and poor health.  We do not believe that under these circumstances she has a reasonably good chance of earning her livelihood.  Her testimony was that she did not know how she would support herself.

Additionally, the claimant has been unable to support herself for some time.  She has relied on the generosity of her children, family, and friends to give her money and provide transportation.  Her testimony concerning this support was corroborated by her sister’s testimony and records.  She lives in an unfinished home with meager furnishings and conveniences, with no bathroom or hot water.  Nevertheless, she has cared for her granddaughter and other persons under these conditions, exclusively at the uncertain provision of her children.  This support clearly is fraught with “contingencies” and “uncertainties.”

The lack of health insurance and her meager assets leave the claimant prone to financial disaster even in conducting her routine affairs.  We believe that the claimant has met her burden of establishing that she is in destitute circumstances.  See Payne v. Sprinkle Masonry, Inc., 68 O.I.C. 156, 159 (1989).

The deputy commissioner was concerned with the approximately $7,000 balance held in the claimant’s name used to help the claimant secure her tourist visa.  The claimant testified, however, that her daughter provided her with this money and that its exclusive purpose was to secure the visa, after which time the money belonged to her daughter.  Regardless, considering the death benefits allowed by the Act, we believe that this amount was negligible.

The deputy commissioner also looked to the claimant’s apparent ability “to keep up with her monthly expenses since her son’s death.  The evidence showed, however, that this “ability” was subject to her children’s support.  As set forth in Bagwell, however, this consideration was inappropriate.  As for the employer’s reliance on Oil Transport, Inc. v. Jordan, 22 Va. App. 633, 472 S.E.2d 291 (1996), the parent there had regular income from an annuity and from social security, thus undermining any finding that she was “financially vulnerable.”

We therefore find that Elvira Alvarenga is a parent in destitute circumstances.

For these reasons, the April 26, 2001, Opinion is REVERSED.  This matter is REMANDED to the deputy commissioner for entry of an appropriate Award.

TARR, COMMISSIONER, Dissenting:

I respectfully dissent from the majority’s Opinion.

The evidence supports the Deputy Commissioner’s determinations that Ms. Alvarenga is not disabled and is not a parent in destitute circumstances.

There is no medical evidence that supports the claimant’s allegations of disability.  Contrary to this claim is the fact that at the time of Mr. Garcia’s death, Ms. Alvarenga was able to care for her granddaughter, her son’s girlfriend, and three of the girlfriend’s children.

As to whether Ms. Alvarenga is a parent in destitute circumstances, the Deputy Commissioner held she was not.  The Deputy Commissioner noted that the claimant was capable of working, that her longtime career of selling clothing from her home allowed her to buy land and build a home with electricity, water and a number of modern appliances, save about $7,000 and “there is no indication that she has not been able to keep up with her monthly expenses since (her son’s) death as she was before.”

I agree with the Deputy Commissioner that the burden of proof was not met and would affirm.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.

VIRGINIA:          12/31/2003

IN THE WORKERS’ COMPENSATION COMMISSION

EZEQUIEL VELEZ RIVERA, Claimant

Opinion by the

COMMISSION

v.                                                                                                                              VWC File No. 213-20-24

AHC MANAGEMENT, L.L.C., Employer

HARTFORD UNDERWRITERS INSURANCE COMPANY, Insurer

Daniel P. Barrera, Esquire

for the Claimant.

Roger L. Williams, Esquire

for the Defendants.

REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.

This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s June 19, 2003, Opinion finding the claimant established an injury arising out of and in the course of his employment, as well as causally-related disability from January 13 through April 28, 2003.  We AFFIRM the Opinion below.

This 28-year-old maintenance worker testified through a translator that at 9:00 a.m. on May 13, 2002, he and his supervisor, Pablos Zamora, brought a refrigerator up to the second floor of a building.  The claimant was wearing a security belt at the time.  The claimant testified that he told Mr. Zamora he felt a “bump in [his] back”and asked to take a break because he “felt the impact in the back of [his] back” but felt no pain.   The claimant continued working after the break until noon, when he went to lunch and took his belt off and felt pain.  The claimant testified that he went to his bed in his apartment, and later fell because the pain in his back went down his left leg.

The claimant returned to work after lunch and told Mr. Zamora that he had a “very strong pain” in his back.  At approximately 2:30 p.m., he stopped working because he “couldn’t stand the pain anymore.”  The claimant testified that he went with his supervisor to report to the chief and then went home to rest.  However, he fell again because he could not feel his legs, so he decided to go to George Mason Hospital.  He sought follow-up treatment in May and September from Dr. Fernandez.  He returned to full duty on May 20, 2002, but continued to refill his medication.

The claimant denied suffering any other incidents or falls between May 13, 2002, and January 2003, when his condition became worse and the medicine no longer worked.  He eventually had surgery.

Pablos Zamora, the employer’s maintenance supervisor, testified that when the claimant returned from lunch on May 13, 2002, he reported a “very hard back pain” which he did not attribute to anything in particular.  Mr. Zamora testified that approximately two weeks later, the claimant stated that he felt he had hurt his back moving a refrigerator.  Mr. Zamora stated that the claimant missed a few days from work in May 2002 and then returned to his regular duty without complaint until January 13, 2003.  Mr. Zamora testified that the claimant’s regular duties include lifting, bending, pushing, and climbing.

Mr. Zamora testified that he did not remember moving a refrigerator with the claimant on the morning of May 13, 2002, but after reviewing his files he has nothing to dispute that the refrigerator move took place.  He does remember changing filters with the claimant that morning.  He testified that they went to lunch around 1:00 p.m., and at 2:30 or 3:00 p.m., the claimant reported that he had taken a nap after lunch and had a difficult time getting up and had a “very bad back pain.”  Mr. Zamora stated that the claimant tried to work that afternoon but could not, so he asked the claimant to report to the manager.

Escarlet Torres, resident manager for the employer, testified that she handles workers’ compensation claims.  She testified that between 2:30 and 3:00 p.m. on May 13, 2002, the claimant reported a “really sharp pain on his back that he couldn’t even walk.”  Ms. Torres testified that she asked the claimant if he was doing anything “unusual,” and the claimant replied that he “was just doing his normal work.”  She testified that lifting a refrigerator would not have been “unusual” work for the claimant; rather, it would be part of his normal routine.

A translation of the claimant’s recorded statement, admitted as Defendants’ Exhibit 1, confirms the incident of moving the refrigerator with pain beginning on his break.

The medical record reveals that the claimant sought treatment at Virginia Hospital Center on May 13, 2002, where triage personnel reported a history of “lifting a refrig. this am @ work.”  The personnel reported a complaint of back pain and numbness in his extremities.  The claimant was diagnosed with a lumbosacral sprain.

On May 15, 2002, the claimant saw Dr. Ricardo Fernandez, who reported a complaint of back pain after “lifting refrigerator several days ago.”  Dr. Fernandez diagnosed back pain and asthma.  For the back problem, he prescribed Celebrex and noted that the claimant should return if the problem did not resolve.  The claimant returned on September 16, 2002, with back pain and some radiation to the left leg.  He also complained of increased allergies.  Dr. Fernandez diagnosed lumbar radiculopathy.  The claimant returned on January 13, 2003, reporting that the day before he awoke with severe pain in his low back radiating to his left leg and foot.  He excused the claimant from work, ordered an MRI, and referred him to Dr. Dennis A. Carlini, orthopedic surgeon, who examined the claimant on January 17, 2003.  Dr. Carlini reported that the claimant had a seven-month history of low back pain with bilateral leg radiation, worse on the left.  He also reported that the MRI showed disc herniations at L4-5 and L5-S1.

After an unsuccessful epidural, Dr. Carlini referred the claimant to Dr. Alan G. Schreiber, who reported that the claimant “had an injury moving furniture to the third floor in May of last year” with back pain “off and on since that time.”  Dr. Schreiber subsequently performed surgery

On Review, we note the claimant has the burden of proving that his injury was caused by an identifiable incident or sudden precipitating event causing an obvious, sudden mechanical or structural change in the body.  Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989); Lane Co. v. Saunders, 229 Va. 196, 199, 326 S.E.2d 702, 703 (1985).  ”Causation is an essential element which must be proven by a claimant in order to receive an award of compensation for an injury by accident.”  AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881 (1990).  However, “it is not necessary in establishing causation that the pain or other physical manifestation of injury be contemporaneous with the incident in employment to prove that the injury arose out of the employment.”  Morris v. Morris, 4 Va. App. 193, 200, 355 S.E.2d 892, 896 (1987), rev’d on other grounds, 238 Va. 578, 385 S.E.2d 858 (1989).

We find that the claimant credibly described a significant incident in carrying a refrigerator up steps on May 13, 2002.  Although he felt no pain, he did feel a “bump’ or an “impact” in his back at the time.  The claimant’s supervisor, Mr. Zamora, did not dispute that the claimant moved a refrigerator that morning.  Ms. Torres merely asked if the claimant did anything “unusual” that morning, to which the claimant responded in the negative.  Ms. Torres admitted that it would not have been unusual for the claimant to be moving a refrigerator in the course of his employment.  We find the record supports the claimant’s testimony at the hearing concerning the incident.

We further find causation established.  As noted above, it is not necessary for the claimant to have felt pain at the time he moved the refrigerator.  The claimant’s pain developed over the course of the afternoon after moving the refrigerator.  He attributed his pain to this event at the hospital later that same day and at subsequent medical visits. The medical reports consistently report a history of the incident.  Moreover, in contrast to the employer’s assertions on Review, the claimant did seek further medical treatment prior to January 2003.  The claimant saw Dr. Fernandez in May and September 2002.  At the latter visit, it is evident that the claimant’s condition was worsening.  The claimant also testified that between May and September, his medications were refilled.  The medical reports confirm that the claimant’s back problems persisted and worsened, despite his continuing to work until his pain was so bad that he could no longer work in January 2003.

After careful Review, we find the evidence amply supports the Deputy Commissioner’s findings that the claimant sustained a compensable injury by accident arising out of and in the course of his employment on May 13, 2002, and that the incident caused the claimant’s disability. The Opinion below is AFFIRMED.

This matter is hereby removed from the Review docket.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.

VIRGINIA:        01/07/2004

IN THE WORKERS’ COMPENSATION COMMISSION

MARIO BALDIVIESO, Claimant

Opinion by DIAMOND

Commissioner

v.                                                                                                                               VWC File No. 210-42-74

LABOR FINDERS OF VA., INC., Employer

AMERICAN CASUALTY CO., Insurer

Daniel P. Barrera, Esquire

1650 King Street, #505

Alexandria, Virginia 22314

for the claimant.

(Copy sent by Priority Mail)

Joshua M. Wulf, Esquire

6862 Elm Street, Suite 410

McLean, Virginia 22101

for the defendants.

(Copy sent by Priority Mail)

Review on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.

The employer requests Review of the deputy commissioner’s July 29, 2003, Opinion.  The claimant alleged that he suffered an injury by accident on June 25, 2002, when he suffered a heat stroke at work.  The deputy commissioner found that the injury arose out of the employment, and the employer appeals.  The employer also appeals the deputy commissioner’s finding that the claimant was disabled.  We AFFIRM.

We adopt the deputy commissioner’s summary of the relevant evidence and will not restate it here.  Briefly, the claimant was working as a trash collector on June 25, 2002.  Toward the end of the day, Kiki Gouveia, who was working with the claimant, noticed that “there was something wrong” with the claimant.  Gouveia stated that the claimant “looked like he was disoriented, looking for things in his pocket and looking underneath the truck.”  Gouveia stated that the claimant was slurring his speech and shaking.  He called for help, and the claimant was taken for emergency treatment.  The record showed that the claimant suffered brain damage related to heat stroke.  He was in intensive care from June 25 to August 7, 2002, and stayed in the hospital until September 20, 2002.  He then was transferred to the Loudoun Long Term Care Center, where he presently lives.

Gouveia testified that he drove the trash truck used by the two men on June 25, 2002.  He stated that the claimant rode on the back of the truck, except that on occasion he rode in the cab.  Gouveia stated that he did not run the air conditioning in the cab because it was his understanding that it caused the truck to overheat.  Gouveia stated that it was 95 degrees on the day in question, and that it was “very stuffy and hot.”  Other than a break in the middle of the day to dump the truck, at which point they also stopped at a store to buy lunch, Gouveia stated that the two did not take any breaks.  He stated that he is paid a daily rate, and that the claimant’s services were provided by a temporary agency for his assistance.  Gouveia stated that he “pushed to get my route” in order to finish as quickly as possible.  Gouveia explained that the claimant placed the trash into the truck.  If the claimant required assistance, Gouveia provided it.  Gouveia estimated that he and the claimant had performed approximately 600 pickups when the claimant became ill.

Steve Barton, the operations manager for the route in question, testified that it was “extremely hot” on June 25, 2002.  He estimated that the temperature was 95 degrees and stated that the humidity was “extremely high, too.”  Barton stated that the claimant either went house to house on a sidewalk picking up trash, or rode on the back of the truck along the route, unless the distance was greater than one-half mile, when he would ride in the cab.  Barton stated that there was a step on the back of the truck, and that it was not shaded.  Barton stated that he reported to the scene of the accident after it was called in.  He stated that the accident took place in “a new section of Leesburg.  It’s wide open and not many trees around.”  Climate data submitted by the parties showed that at Dulles International Airport, the high temperature on June 25, 2002, was 93 degrees, with a relative humidity level of 50% at 3:51 p.m. and 54% at 4:51 p.m., the approximate time of the accident.

The medical evidence showed that the claimant suffered “probable permanent brain damage from his heat stroke,” as noted by Dr. Richard Rosenthal on September 13, 2002.  Dr. Rosenthal noted on June 25, 2002, that the claimant had been found next to his truck with a temperature of 109 degrees and no pulse.  He was intubated and brought to the hospital, where he received “large volume resuscitation.”  A CT scan showed a “small probable bleed in the temporal lobe on the left.”  On September 6, 2002, Dr. Page Fletcher noted that the claimant had suffered “acute renal failure when admitted.”  Dr. Fletcher diagnosed the claimant with “post-traumatic dementia secondary to the heat stroke.”  He recommended discharge to long-term care “in a team approach to find the optimal setting of care for this man that is slowly improving.”  He prescribed anti-dementia medication and noted that “any help in cognition will help him further perform the work of rehabilitation.”

On September 13, 2002, Dr. Rosenthal diagnosed the claimant with “probable permanent brain damage from his heat stroke.”  Dr. Rosenthal further noted that the claimant was “Unable to perform daily chores associated with taking care of himself and his independent survival.”  Records from Loudoun Long Term Care were minimal, but showed that the claimant receives occasional psychiatric consultation.  On March 21, 2003, the claimant was diagnosed with “major depression assoc. with brain damage.”  On April 11, 2003, the claimant was diagnosed with “dementia after heat stroke with depression.”

The deputy commissioner found that the claimant’s injury arose out of his employment.  The employer argues that this was erroneous because the evidence did not show any extraordinary environmental conditions or work activities that would distinguish the claimant from any other outdoor worker on June 25, 2002.  We agree with the deputy commissioner.

The claimant worked a long day on June 25, 2002, in temperatures that were very hot.  The weather records from Dulles International Airport showed a high of 93 degrees, and the witness testimony showed that the temperatures and humidity on the claimant’s route made the weather “very stuffy and hot” and “extremely hot.”  The claimant spent most of the day walking alongside the truck, picking up trash bags, or riding on the back of the truck between pickups.  It is not speculative to conclude that the roadways used for the route were not shaded.  As for the site of the accident, the evidence showed that it was a new development that was “wide open” and without tree cover.  Finally, and importantly, the claimant’s temperature at the scene was noted to be 109 degrees, which obviously is not a condition commonly experienced by other outdoor workers.

The employer attributes the claimant’s injury to his decision to wear long-sleeves and multiple layers of clothing.  There was no evidence, however, that the claimant’s attire contributed to his injury.  To the contrary, it would be just as reasonable to conclude that long-sleeves were appropriate, given that the claimant worked in the sun.  In conclusion, the evidence was clear that the claimant suffered a heat stroke on June 25, 2002, as a result of his employment. The injury was the result of working outside on a very hot day in summer, when the majority of his time was spent either walking alongside a trash truck, picking up and throwing trash into the truck, or riding on the back of the truck.  Unlike other workers, he was not protected from the elements, and at the time of the accident, his body temperature was 109 degrees.  Finally, Dr. Rosenthal noted on September 13, 2002, that the heat stroke was caused by his work and there was no reason for his heat stroke other than his work.  We believe the deputy commissioner’s decision was correct.

The employer further argues that the deputy commissioner erred in awarding continuing total disability benefits as of the May 22, 2003, hearing, because the most recent opinion as to the claimant’s condition was Dr. Rosenthal’s September 13, 2002, assessment.  The evidence showed that the claimant’s injuries were severe, causing “probable permanent brain damage” and resulting in his being confined to a long-term care facility.  As recently as April 11, 2003, he was diagnosed with “dementia after heat stroke with depression.”  While we agree with the employer that disability should not be presumed, we believe that the evidence showed that the claimant, who was hospitalized for approximately three months after the accident and was discharged, with diagnoses of brain damage and dementia, to long-term care, where he had lived for eight months at the time of the hearing, continued to be disabled.  Moreover, the deputy commissioner noted his observation of the claimant at the hearing, which confirmed the claimant’s catastrophic injuries.  We note that the Claim was not for permanent total disability, but for temporary total disability, and we agree with the deputy commissioner that the evidence showed that at the time of the hearing the claimant was totally disabled as a result of the accident.

For these reasons, the July 29, 2003, Opinion is AFFIRMED.  Interest on the Award is payable pursuant to Code 65.2-707.

The attorney’s fee awarded to counsel for the claimant is increased to a total fee of $1,400.00, to be paid directly to counsel from accrued compensation.

This matter is removed from the Review docket.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.

VIRGINIA:          03/22/2004

IN THE WORKERS’ COMPENSATION COMMISSION

JOSE GARCIA, Claimant

Opinion by the

COMMISSION

v.                                                                                                                              VWC File No. 212-98-78

D.L. MONGOLD CONSTRUCTION, Employer

WCAMC CONTRACTORS GROUP, Insurer

Daniel P. Barrera, Esquire

1650 King Street, #505

Alexandria, Virginia 22314

for the Claimant.

(Copy sent Priority Mail)

Frederick T. Schubert, Esquire

9030 Stony Point Parkway, Suite 160

Richmond, Virginia 23235

for the Defendants.

(Copy sent Priority Mail)

REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.

This case is before the Commission on the employer’s request for Review of the Deputy

Commissioner’s July 31, 2003, Opinion.  The employer takes exception to the findings that this claim for injury by accident on January 7, 2003, is not barred by willful misconduct, and that the claimant is entitled to temporary total disability benefits from January 7, 2003, and continuing. We AFFIRM.

The claimant, who has a sixth grade education, testified through an interpreter that on January 7, 2003, he was working for the employer in a basement structure, helping to lift an iron beam.  The claimant stated that the floor of the basement was icy and very slippery.  There were approximately five people working on this task and they were being rushed because the concrete was going to be poured next.  He testified that as they were lifting the structure, he tried to stand up and “all I know is that this thing was on top of me.”  The claimant earlier testified that as they were trying to put up the structure, he slipped and the structure fell on his head.

The claimant also testified that at one point during the process of lifting the beam he was standing next to Victor Prieto.  The claimant testified that he slipped while standing next to Mr. Prieto.  Mr. Prieto tried to grab the claimant and pull him back but the beam was already on top of him. The claimant denied receiving any warning about staying away from the iron structure.

Eduardo Prieto, a carpenter, translator, and supervisor for the employer, testified that on January 7, 2003, six workers were present at the time that a 500-pound steel beam needed to be set at a house that was being constructed.  He confirmed that there was a lot of ice in the house.   Mr. Prieto stated that the beam was resting on concrete in the garage.  He and Josh Jones moved the beam at first, sliding it into the basement.  Mr. Prieto testified that he had never done this before and he had no experience with it.  He discussed the task of dropping the beam into the basement with Jake Mongold, a foreman, and it was determined that the beam would be dropped because it was icy and the workers would need to “move away.”

Mr. Prieto testified that Jake advised the workers to move away in English, and Mr. Prieto then said, “move away” in Spanish.  Mr. Prieto testified that the claimant did not move away at first, so he said a second time, “move away” because the beam was going to be dropped.  His brother also repeated the warning.  Mr. Prieto testified that on the second warning, the claimant moved against the wall close to Mr. Prieto and his brother.  The beam was going to be dropped on the count of three.  Mr. Prieto testified that he did not translate the count for the claimant or for his brother.

Mr. Prieto testified that the floor in the basement was wet but not slippery.  He also testified that there was ice in the basement.  He did not see the claimant slip.  He heard Darrell Day say, “watch out” but that is all he remembers.  Mr. Prieto did not hear the claimant say anything.  He did not see the beam fall on the claimant or how it happened because he was looking away when Jake Mongold started the count.

Darryl Day, a carpenter for the employer, testified that a beam is rarely dropped into a basement the way it was on January 7, 2003; however, because of the weather Jake Mongold felt it was safer.  Mr. Day testified that on the morning of January 7, 2003, one end of the beam was slid into the basement and hit on the concrete slab, and the other end was being dropped into the basement.  Mr. Day understood that there was going to be a count of three by Jake or Josh before the beam was dropped, and that Eduardo was going to tell the Spanish-speaking individuals what was going to happen.  Mr. Day saw Eduardo speak to them but he does not know what was said, as he does not speak Spanish.  After this discussion, Mr. Day observed the Spanish-speaking workers standing about five or six feet away from the beam.  He also saw the claimant take two steps toward the beam at the end of the count and bend his head to go under the beam.  Mr. Day testified that the beam was dropped and hit the claimant in the back of the head.  He did not see the claimant slip.

Mr. Day admitted that in his deposition, he testified that he did not see the claimant take any steps, that all he saw was the claimant going underneath the beam and he yelled for him to stop.   At one point during the hearing Mr. Day testified that he saw the claimant take two steps, and at another point he testified that he saw the claimant take two steps.

Joshua Jones, a carpenter with the employer, testified that Jake Mongold discussed various methods of dropping the fifteen-foot beam, and decided to get it to the corner of a wall and then drop it in the basement so they would pick it up and set it.  Mr. Jones testified that Jake ensured that Eduardo would translate the procedure for everyone.  Mr. Jones was assigned to drop the beam.  He saw the claimant and three or four other workers standing about five or six feet away in a cubbyhole of the house.  Mr. Jones counted to three in a loud voice to make sure everyone heard and focused his attention on the task at hand.  By the time Mr. Jones heard Mr. Day yell, “watch it,” it was too late to stop the beam from dropping.  Mr. Jones had never dropped a beam before.

To successfully raise a defense of willful misconduct, the employer must establish (1) that the safety rule [or other duty] was reasonable, (2) that the rule was known to [the employee], (3) that the rule was for [the employee's] benefit, and (4) that [the employee] intentionally undertook the forbidden act. Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989).  Upon consideration of the evidence in the case at bar and the applicable law, we conclude that the Deputy Commissioner did not err in finding that the employer failed to prove misconduct.

The employees were working in an icy basement, attempting to drop a fifteen-foot, five hundred-pound steel beam.  The testimony of the witnesses establishes that the employees had no experience with this particular procedure.  The only “rule” posited in this case is that the employees were told to “move away” from the beam.   The evidence shows that the claimant heeded this warning and moved to the wall next to Mr. Prieto.  The count was not translated into Spanish, and it is not clear exactly what happened to place the claimant in a position of being hit by the beam.  Mr. Prieto did not see what happened, Mr. Day’s testimony is contradictory, and Mr. Jones was paying attention to his task of dropping the beam.  The claimant testified several times that he slipped.  All the witnesses agreed that the basement was icy.  Under these circumstances, we cannot find that the claimant intentionally violated a rule.  We find his accident compensable and AFFIRM this finding.

Turning to the issue of disability, the employer argues on Review that the Deputy Commissioner erred in relying on the evidence provided by the claimant’s chiropractor, Dr. Kevin Reiman.  We disagree.

The medical record reveals that the claimant was initially treated at Inova Fairfax Hospital for multiple injuries including fractures of the transverse processes of the lumbar vertebrae.   The claimant was seen at the hospital by Dr. Aldo M. Rosemblat, a neurosurgeon, who determined that the claimant did not need surgery.

Following his discharge from the hospital, the claimant returned to Dr. Rosemblat on January 16, 2003, complaining of severe low back pain.  Dr. Rosemblat prescribed physical therapy and medication and ordered an MRI.  He opined that the claimant was totally disabled and that his injuries would take 90 to 120 days to heal and allow a return to work.   Dr. Rosemblat completed a form indicating that the anticipated date of return to work was April 7, 2003.

The claimant was instructed to return to Dr. Rosemblat on February 6, 2003.  However, the claimant did not return to Dr. Rosemblat and instead began extensive therapy under the care of Dr. Reiman beginning March 17, 2003.  Dr. Reiman has issued work status notes excusing the claimant from work through July 7, 2003, which is beyond the date of the hearing.

We also have a report from Dr. Leo B. Van Herpe, an orthopedist, issued on June 18, 2003.  Dr. Van Herpe examined the claimant and reviewed his medical records at the request of the employer.  Dr. Van Herpe reported that the claimant sustained a small laceration of the liver and fractures of the transverse processes of L2, L3, and L4, as a result of the accident.  He took x-rays which showed that the fractures have healed.  Dr. Van Herpe opined that there is no reason that he cannot return to work without restrictions and that the claimant’s complaints are out of proportion to his injuries.  Dr. Van Herpe also noted that the claimant was voicing some abdominal complaints, and he recommended further work-up to determine if the liver injury was the cause.  He did not believe that the abdominal problem was disabling.

Based on the evidence presented, we agree the claimant has proven an ongoing disability.  It is well established that the Commission generally defers to the opinion of the treating physician over the contrary opinion of a non-treating independent medical examiner hired by the employer for a single examination.  Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986); Gourzis v. Mitre Corporation, VWC File No. 161-27-08 (April 18, 1996).

The Opinion below is AFFIRMED.

Interest is payable on the Award pursuant to Code 65.2-707.  The attorney’s fee awarded in the July 31, 2003, Opinion is increased to a total fee of $1,500.00, which shall be paid directly to counsel for the claimant out of accrued compensation.

This matter is hereby removed from the Review docket.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.

VIRGINIA:          04/27/2005

IN THE WORKERS’ COMPENSATION COMMISSION

MARIA T. BARBA, Claimant

Opinion by the

Commission

v.                                                                                                                              VWC File No. 213-10-55

TERESA ENRIQUEZ/CLEAN MASTER TOTAL BLDG., Employer

- NO RECORD OF INSURANCE -

KENNETH R. BRADY T/A JANIPRO, Employer

- NO RECORD OF INSURANCE -

Daniel P. Barrera, Esquire

1650 King Street, # 505

Alexandria, VA  22314

For the Claimant

(Copy sent Priority Mail)

Michael Hadeed, Jr., Esquire

5501 Backlick Road, Suite 220

Springfield, VA  22151

For Teresa Enriquez/Clean Master Total Bldg.

(Copy sent Priority Mail)

Edward H. Grove, Esquire

Brault, Palmer, Grove, White & Steinhilber, LLP

P.O. Box 1010

Fairfax, VA 22038-1010

For Kenneth R. Brady T/A Janipro

(Copy sent Priority Mail)

Jimese Pendergraft Sherrill, Esquire

10521 Judicial Drive, Suite 300

Fairfax, VA  22030-3109

For the Uninsured Employer’s Fund

(Copy sent Priority Mail)

REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.

This case is before the Commission at the request of Kenneth R. Brady T/A Janipro (“Brady”) for Review of the Deputy Commissioner’s assessment of a fine associated with Brady’s failure to obtain workers’ compensation insurance.  We AFFIRM as modified.

On November 5, 2003, the Commission issued a show cause order directing Brady to appear before the Commission and show why he should not be fined in accordance with Code 65.2-805 for failing to have workers’ compensation insurance.  The Deputy Commissioner conducted two hearings in connection with the Show Cause Order and the underlying claim of the claimant, Ms. Barba.

The evidence is summarized here only to the extent necessary to address the issue considered on Review.

Brady testified that he is self-employed and operates a business cleaning offices.  He explained that he has approximately 18 clients.  He also indicated that he has a month-to-month contract with Gold’s Gym to clean two of that company’s gym facilities.

Brady denied performing any of the actual cleaning of his client’s offices or facilities.  Instead, he explained that he subcontracts with Teresa Enriquez/Clean Master to perform the actual work of cleaning.

Brady indicated that he has liability insurance “just for myself.”  He denied ever having workers’ compensation insurance.  He also indicated that he was “pretty sure” Ms. Enriquez never showed him proof that she had workers’ compensation insurance but that she did provide him with a certificate showing that she had liability insurance.  In addition, Brady admitted that he never required Ms. Enriquez to provide him with proof of workers’ compensation insurance.

Brady acknowledged that he was not aware of the number of employees Ms. Enriquez had in September of 2002 when the claimant, Ms. Barba, suffered a workplace injury.

Teresa Enriquez testified that her cleaning business performed cleaning services for Brady at Gold’s Gym as a subcontractor.  She denied having any actual employees and indicated that she considered Ms. Barba to be an independent contractor.¹

Brady argues on Review that the $5,000 fine assessed against him by the Deputy Commissioner be reversed, suspended with terms, or modified substantially because there is no evidence of any malfeasance on the part of Brady.  Specifically, he contends that, had he asked Ms. Enriquez regarding her number of employees, he would have been told his subcontractor had fewer than the number of employees requiring workers’ compensation coverage.  We find no error in the Deputy Commissioner’s assessment of a penalty against Brady.

Code 65.2-800 provides that every employer subject to the Act shall insure payment of compensation.  Code 65.2-804 provides that every employer subject to the Act shall file with the Virginia Workers’ Compensation Commission evidence of proof of insurance.  Code 65.2-805 provides that if such an employer fails to comply with the provisions of Code 65.2-804, Code of Virginia, he shall be punished by a fine of not less than $500.00 nor more than $5,000.00.

As the Court of Appeals explained in Last v. Virginia State Bd. of Medicine, 14 Va. App. 906, 421 S.E.2d 201 (1992):

In its ordinary signification, “shall” is a word of command, and is the language of command, and is the ordinary, usual, and natural word used in connection with a mandate.  In this sense “shall” is inconsistent with, and excludes, the idea of discretion, and operates to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved … unless an intent to the contrary appears; but the context ought to be very strongly persuasive before it is softened into a mere permission.

Id. at 911, 421 S.E.2d at 205 (quoting Andrews v. Sheperd, 201 Va. 412, 414, 111 S.E.2d 279, 281 (1959)).  Thus, although there is some discretion regarding the amount of the fine to be imposed, a fine’s issuance is mandatory when, as here, an “employer” under the Act fails to obtain workers’ compensation coverage.  See Rosas v. African Art Gallery, VWC File No. 186-06-18 (1998).

Given the facts of this case, we also agree with the Deputy Commissioner’s conclusion that a substantial fine should be imposed against Brady.  The record reflects that Brady operated a cleaning business by relying upon the employees of a subcontractor. Brady candidly admitted at the hearing that he never attempted to ascertain the number of Ms. Enriquez’s employees.  Nor did he require her to provide proof of workers’ compensation insurance.

Because his subcontractor was performing the functions of his business, we conclude that he had an obligation of ascertaining the number of employees who were actually performing the work of his cleaning business so as to determine if he was bound by the requirements of the Act as an employer.  As correctly noted by the Deputy Commissioner, Code 65.2-302, the statutory employer provision, is intended to prevent employers from escaping workers’ compensation liability and the obligation of obtaining workers’ compensation coverage simply by subcontracting away work which is part of the statutory employer’s trade, business and obligation.  From our Review of the record, we conclude that this is precisely what Brady attempted to do.

Nevertheless, we conclude that the amount of the penalty assessed by the Deputy Commissioner was somewhat excessive given the subcontractor’s belief that the claimant was an independent contractor.  Under the circumstances, we lower the fine to $3,000 on Review.

For these reasons, the June 7, 2004, Opinion of the Deputy Commissioner assessing a fine against Kenneth R. Brady T/A Janipro is AFFIRMED as modified and the fine assessed against Kenneth R. Brady T/A Janipro is hereby lowered to $3,000.

This matter is hereby removed from the Review docket.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.

c: Maria T. Barba

Teresa Enriquez/Clean Master Total Bldg.

10656 Myrtle Oak Ct.

Burke, VA 22015

Kenneth R. Brady

T/A Janipro

6208 Knollview Place

Centerville, VA 21020

Compmanagement, Inc.

P. O. Box 85631

Richmond, VA 23285

¹ The Deputy Commissioner concluded that Ms. Enriquez regularly employed three or more employees in the Commonwealth and that Ms. Barba was Ms. Enriquez’s employee rather than an independent contractor.  No party has requested Review of these findings and, therefore, they are not addressed in this Opinion.

VIRGINIA:        05/06/2005

IN THE WORKERS’ COMPENSATION COMMISSION

MARIO CELESTINO, Claimant

Opinion by the

Commission

v.                                                                                                                          VWC File No. 218-90-23

DEAN STEEL ERECTORS CO., INC., Employer

ST. PAUL FIRE & MARINE INS. CO., Insurer

Daniel P. Barrera, Esquire

1650 King Street, #505

Alexandria, Virginia 22314

for the claimant.

(Copy sent by Priority Mail)

Mark A. Stallings, Esquire

355 Crawford Parkway, Suite 520

Portsmouth, Virginia 23704

for the defendants.

(Copy sent by Priority Mail)

REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.

The employer requests Review of the deputy commissioner’s November 5, 2004, Opinion.  The claimant alleged a September 23, 2003, injury by accident.  The deputy commissioner awarded benefits for the period September 23 to September 29, 2003, and the employer appeals.  We AFFIRM.

The only issue before us is whether the deputy commissioner erred in failing to grant the employer’s request for a continuance of the October 7, 2004, hearing in this dispute.  The claimant was injured on September 23, 2003, and filed the Claim on May 11, 2004.  The claimant, the employer, and the insurer were notified on May 24, 2004, that the Claim was filed and certain additional information was required.  The employer and insurer failed to respond, and a Show Cause Order was issued.  On June 24, 2004, the parties were notified that the Claim was being referred to the hearing docket.  On July 19, 2004, the parties were notified that a hearing was scheduled for October 7, 2004.

In a July 27, 2004, letter, counsel for the insurer noted an appearance, and on August 13, 2004, the deputy commissioner’s office inquired if counsel also represented the employer.  On August 17, 2004, counsel responded that he represented the employer and the insurer.  In a September 3, 2004, letter, counsel for the claimant notified the Commission that it appeared that the wrong insurer had been notified.  On September 17, 2004, the deputy commissioner’s office responded, indicating that the correct insurer was notified, and that the insurer had affiliated a third party administrator.

On September 30, 2004, present counsel for the employer filed a notice of appearance.  On October 1, 2004, counsel requested a continuance, asserting that additional time was needed to prepare a defense, and to allow the employer time to assert a Code 65.2-306 defense of willful misconduct.  The deputy commissioner denied the employer’s motion, and reiterated the denial in the November 5, 2004, Opinion.  The deputy commissioner reasoned that the Claim was filed on May 11, 2004, and the hearing was scheduled on July 19, 2004, providing ample time for the employer to prepare its defense.  The employer requests Review.

The employer argues that the deputy commissioner abused his discretion in denying the continuance, reasoning that it caused irreparable harm to the employer.  (The employer made a proffer at the hearing concerning its willful misconduct defense.)  The employer further argues that the harm resulting to it far outweighs any harm caused to the claimant.

The employer does not offer an explanation as to why, when it was notified of the Claim in May 2004, and received notice of the scheduled hearing on June 24, 2004, it failed to request a continuance until October 1, 2004, less than one week before the hearing.  Counsel for the employer indicated that the insurer forwarded the file to his office on September 18, 2004, but he was on vacation and did not review the file until September 27, 2004, by which point it was too late to assert a Code 65.2-306 defense.  This leaves an approximate three-month period between June and September, however, when the employer and insurer knew of the hearing and yet did not seek a continuance.  Moreover, there was an appearance noted by additional counsel as early as July 27, 2004, which provided ample time both to request a continuance and to assert a Code 65.2-306 defense.

The employer further argues that essentially no harm would have resulted to the claimant by granting the continuance, asserting that all compensation benefits at issue already have been paid.  The employer does not take into account, however, the claimant’s medical treatment, including any follow-up treatment that may be delayed.  The issue is whether the deputy commissioner abused his discretion in failing to grant the continuance.  The Commission is charged with administering numerous claims, and the deputy commissioner, as noted in his letter denying the request, reasoned that the request came too late, considering the lengthy period of notice of the hearing.  We believe that the deputy commissioner acted within his discretion in denying the request for a continuance.  See Lukachik v. Loudoun County Sch. Bd., VWC File No. 205-60-63 (Feb. 11, 2002).

For these reasons, the November 5, 2004, Opinion is AFFIRMED.

This matter is removed from the Review docket.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.

cc: Mario Celestino

580 Hawkins Street

Harrisonburg, Virginia 22801

St. Paul Fire & Marine Ins. Co.

Va. UCM

P.O. Box 3570

Brandon, Florida 33509

Dean Steel Erectors Co., Inc.

5366 N. Valley Pike

Harrisonburg, Virginia 22802

VIRGINIA:            02/28/2007

IN THE WORKERS’ COMPENSATION COMMISSION

MARIA DIAZ-MARTINEZ, Claimant

Opinion by the

• • • • • • • COMMISSION

v.                                                                                                                           VWC File No. 223-70-40

TGI FRIDAYS, Employer

INSURANCE CO. OF THE STATE OF PA, Insurer

Daniel P. Barrera, Esquire

1650 King Street, Suite 505

Alexandria, VA  22314

for the Claimant.

(Copy sent Priority Mail)

Douglas A. Seymour, Esquire

10521 Judicial Drive, Suite 300

Fairfax, VA  22030

for the Defendants.

(Copy sent Priority Mail)

REVIEW on the record before Commissioner Diamond, Commissioner Tarr, and Commissioner Dudley at Richmond, Virginia.

This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s April 5, 2006 Opinion finding the employer is responsible for treatment rendered by Drs. McDermott, Constantine, and Chung.  We AFFIRM the Opinion below.

The claimant, age 43, sustained a compensable left hand injury on April 1, 2005, while working as a cook.  The employer accepted her claim and a medical-only Award was entered by the Commission on June 27, 2005. On October 31, 2005, the claimant filed a claim for authorization of medical treatment.  The employer defended the claim on the grounds that the medical treatment is not reasonable, necessary, or causally related to the accident.

The claimant testified that following her injury her hand was swollen.  She sought treatment at Mary Washington Hospital and the Spotsylvania Emergency Center.  The claimant testified that her hand and arm problems have worsened. She cannot use her arm and she suffers pain from her hand to her neck. In May 2005, she was referred to Dr. McDermott at Fredericksburg Orthopedics, who in turn referred her to Dr. Constantine.  Dr. Constantine recommended occupational therapy and an MRI which were not approved.

The claimant testified that she also saw Dr. Chung, who prescribed Neurontin and Nortriptyline which she bought herself.  She stated that the medication improved her symptoms.  Dr. Chung recommended therapy and EMG testing which were not approved.  The claimant last saw Dr. Chung in July 2005. She does not remember the name of the doctor who referred her to Dr. Chung, but stated that “Dr. Constantine referred me to one doctor and then that doctor referred to the last doctor.”

The claimant testified that she has sought no further treatment.  She has continued to work since the accident and is currently working at Old Country Buffet.  The claimant testified that she uses one arm and does not do any strenuous work.

The few medical records in the file reveal that the claimant was treated at Medic One on April 3, 2005, after she lifted a pan three nights earlier and felt pain in her left hand.  Examination showed ecchymosis and swelling with decreased grip strength and tenderness.  X-rays showed no fracture or significant arthritic changes.  On May 7, 2005, the claimant saw Dr. Brian T. McDermott, and orthopedist, who reported that the claimant injured her left hand at TGI Fridays while lifting a heavy plate of shrimp and water.  He noted that she continued to experience pain and immobility of her wrist.  The claimant denied prior injury to her wrist.  On examination, Dr. McDermott found restricted range of motion of the wrist in all directions, crepitus with radial deviation, decreased range of motion of the ulnar two digits, and mild decreased sensation of the fifth digit.  He referred the claimant to Dr. Constantine “given the complexity of this issue.”

An Outpatient Prescription Order Form signed by or on behalf of Dr. Constantine on May 9, 2005, reflects that an MRI of the left wrist was ordered to evaluate for a TFCC tear.  A handwritten notation indicates that the insurance company denied the MRI and the patient was sent to another doctor.  An order was also generated for occupational therapy two times per week for six weeks.

On July 25, 2005, the claimant was evaluated by Dr. Raymond K. Chung, an orthopedist at a different practice.  Dr. Chung reported that a large pan of shrimp and water fell onto the claimant’s left wrist dorsally, causing the volar aspect of the wrist to be pinched on the edge of a sink.  The claimant continued to complain of pain and numbness in her hand and was unable to make a full fist.  Dr. Chung’s detailed examination findings revealed multiple areas of tenderness, weakness in the hand and wrist, colder temperature about the left arm than the right, and some slight sensory disturbances.

Dr. Chung diagnosed a left arm crush injury and regional pain syndrome, rule out compression neuropathy/neuropraxia.  He opined that the overriding feature of the claimant’s injury was pain out of proportion to the physical exam.  He also noted the temperature changes, and concluded that “she does have complex regional pain syndrome.”  Dr. Chung prescribed Neurontin and Nortriptyline as well as physical therapy and electrodiagnostic testing.

The employer obtained an evaluation by Dr. Michael O’Brien on September 28, 2005.  Dr. O’Brien reviewed the claimant’s accident and treatment history.  The claimant reported that her wrist pain was better.  She had full range of motion of her wrist and fingers.  Dr. O’Brien opined that the claimant suffered a contusion/crush injury in April 2005, and explained that those types of injuries “can lead to weird dysesthesias and sometimes RSD as indicated by the office notes.”  Dr. O’Brien saw no evidence of a TFCC tear and expected that an MRI would be normal.  He noted that the claimant might have residual RSD but was able to work.

Dr. O’Brien did not recommend therapy as the claimant was six months past the injury and her symptoms appeared to be slowly resolving.  He suggested a wrist brace for heavier activities and encouraged the claimant to use her hand “and perhaps begin an aquatics program if possible and overall grip strengthening and perhaps occasional anti-inflammatories” but he opined there was no need for future medical management.

On Review, we note that whether an employer is responsible for medical expenses depends upon: (1) whether the medical service was casually related to the industrial injury; (2) whether the medical attention was necessary; and (3) whether the treating physician issued a referral for the treatment.  WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 231, 494 S.E.2d 147, 152 (1997).  There is no issue in this case regarding proper referrals.  The issue is whether the medical services at issue were reasonable, necessary, and causally related to the work accident.

The claimant testified to continuing problems in the left hand and arm.  The fact that she has admirably continued to work is of no moment in determining whether she is entitled to medical care for her injury.  There is no suggestion in any of the medical records that the claimant sustained any injuries to her left hand and wrist other than the work injury.  Most of the medical reports in the file, including the one from Dr. O’Brien, record a history of the work accident.  Dr. O’Brien and Dr. Chung both diagnosed a contusion and crush injury.  Several physicians recommended treatment and diagnostic tests to further evaluate the injury, but the defendants inexplicably denied this employee any treatment.  Dr. O’Brien also suggests some further modalities even as he states that no further medical management is needed.  We conclude that the claimant met her burden of proving that the medical services in question were reasonable, necessary, and causally related to her April 1, 2005, work injury.   Accordingly, the Opinion below is AFFIRMED.

We further grant the claimant’s request for the assessment of attorney’s fees and costs against the defendants pursuant to Code Section 65. 2-713 for defending this claim without reasonable grounds SeeLowes of Short Pump Virginia v. Campbell, 38 Va. App. 55, 62, 561 S.E.2d 757, 760 (2002).  The claimant was awarded medical benefits in this case, but the defendants have refused to provide medical care.  As noted above, the records do not reflect any other cause for the claimant’s complaints other than the work injury.  Although the treatment recommendations have varied somewhat, all of the examining physicians including Dr. O’Brien suggested some ongoing treatment modalities.

The Deputy Commissioner awarded an attorney’s fee of $250 to claimant’s counsel to be paid directly by the claimant.  Judging this issue from the defendants’ perspective, there were no reasonable grounds to deny this employee medical care and continue to pursue this issue at the Review level. The attorney’s fee awarded below is increased to a total of $600.  The defendants are responsible for $350 of this fee.  The claimant is responsible for the remaining $250.

This matter is removed from the Review docket.

TARR, COMMISSIONER, Dissenting:

I respectfully dissent from the finding that the employer unreasonably defended the claimant’s claim for medical benefits.  In support of their defense, the employer relied on the opinion of Dr. O’Brien, who concluded that further diagnostic testing and physical therapy was unnecessary because the claimant’s condition was improving.

A party’s good faith reliance on a contrary medical opinion is not a sufficient basis for imposition of attorneys’ fees.

APPEAL

This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.

cc: Maria Diaz-Martinez

14 Lavelle Dr.

Fredericksburg, VA  22407

TGI Fridays

1160 Carl S. Silver Pkwy.

Fredericksburg, VA  22401

Insurance Co. of the State of Pa.

AIG Domestic Claims Inc.

P.O. Box 70069

Louisville, KY  40270