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Santos Solis v. LVI Serv., Inc.

Saturday, March 21st, 2009

VIRGINIA:            02/08/2008

IN THE WORKERS’ COMPENSATION COMMISSION

SANTOS SOLIS, Claimant

Opinion by the

                • COMMISSION

v.                                                                                                                      VWC File No. 229-33-28

L V I SERV., INC, Employer

AMERICAN HOME ASSURANCE CO., Insurer

Daniel P. Barrera, Esquire

for the Claimant.

(Copy sent Priority Mail)

Susan A. Evans, Esquire

for the Defendants.

(Copy sent Priority Mail)

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

This case is before the Commission on the employer’s request for Review of the Deputy Commissioner’s September 25, 2007, Opinion, finding the claimant remains disabled as a result of a work-related accident and is not able to return to pre-injury work.  We AFFIRM.

Pursuant to an Agreed Order entered on December 8, 2006, the parties stipulated that the claimant sustained a compensable low back strain on May 12, 2006, resulting in temporary total disability benefits beginning September 11, 2006, and continuing.  The parties also stipulated that the reasonable medical bills from Drs. Philips and Green would be paid through December 1, 2006, after which Dr. Danaceau would be considered the treating physician in this claim.

This matter came before the Deputy Commissioner on the Employer’s Application for Hearing filed on March 23, 2007, seeking termination of the award on the grounds that Dr. Stephen Hughes released the claimant to pre-injury work on February 28, 2007, and that the claimant’s disability is unrelated to his accident.

The medical record reveals that the claimant was initially treated at Arlington Urgent care for back pain following a work injury.  Dr. Steven Danaceau, an orthopedist, performed an examination on May 23, 2006, for an injury that occurred when the claimant, a construction worker, was doing some heavy lifting.  Dr. Danaceau diagnosed a thoracolumbar injury and prescribed physical therapy and light duty work restrictions. Spinal x-rays subsequently showed an old compression fracture. On July 10, 2006, he diagnosed a thoracolumbar injury that was slowly improving. On August 7, 2006, Dr. Danaceau recommended an MRI to evaluate the claimant’s “unchanged” symptoms.

The claimant was treated for several months by Dr. Salter and Dr. Green, for primarily thoracolumbar complaints. They prescribed conservative care similar to the treatment provided by Dr. Danaceau. On December 19, 2006, Dr. Danaceau evaluated the claimant for continued pain, tingling, and a fear that he was losing strength and balance.  He maintained the light work restrictions.

A lumbar MRI performed on January 15, 2007, showed spondylolysis at L5 and mild disc degeneration at L1-2 and L5-S1.  On January 23, 2007, Dr. Danaceau addressed the MRI results and advised the claimant there was a likely component of arthritis accounting for some of the back stiffness.  He diagnosed contusion of the thoracic spine, thoracic sprain/strain, contusion of the back, myofascial syndrome, lumbar radiculopathy, and scoliosis.  Dr. Danaceau prescribed anti-inflammatories and continuing therapy, as well as light duty.  He also recommended evaluation by a spine surgeon to determine if surgery was needed, and treatment by a pain management specialist.

Dr. Steven S. Hughes, an orthopedist, evaluated the claimant on February 28, 2007, and reviewed some medical records and diagnostic test reports.  On examination Dr. Hughes found four of five Waddell’s signs and concluded that symptom magnification was present.  He also diagnosed remote resolved lumbar strain, congenital spondylolisthesis, and acquired spondylolisthesis.  Dr. Hughes did not find evidence of a disc herniation or any bulging discs that significantly impact the canal.  He opined that the claimant’s treatment plan was not reasonable or necessary and that the soft tissue injury had resolved.  Dr. Hughes further opined that the claimant “is able to return to work in a full duty capacity at this time without restrictions and limitations.”

On March 6, 2007, Dr. Danaceau noted that the claimant’s lumbar pain occurred as a result of a work injury.  He reported that the claimant has some good days and some bad days and reiterated the same treatment recommendations.  On June 4, 2007, Dr. Danaceau imposed permanent light duty restrictions. Dr. Hughes indicated in August 1, 2007, responses to a check-the-box letter, that he disagrees with Dr. Danaceau’s opinion.

At the hearing, the claimant testified through an interpreter that he is 43 years old with one year of education.  He denied any prior back problems.  He testified that since the accident, he has had a lot of back pain and has been restricted to light duty.

On Review, we note the employer bears the burden of proving by a preponderance of the evidence that the claimant is no longer disabled as a result of his industrial injury and can return to work.  See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987); Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986).  The question is whether the claimant is able to fully perform his pre-injury duties.  Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985).  The employer may satisfy its burden by proving that no restrictions have been placed on the claimant’s ability to work.  Fingles Co. v. Tatterson, 22 Va. App. 638, 642, 472 S.E.2d 646, 647 (1996). Generally great weight should be given to the evidence from an attending physician. Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575, 580, 466 S.E.2d 127, 129 (1996) (citation omitted).

After careful Review of the record, we find the Deputy Commissioner appropriately weighed the competing medical opinions in this case.  Dr. Danaceau has treated the claimant since May 2006, and has restricted him to light duty based on symptoms that have continued since the work accident.  The claimant denied suffering back problems prior to the accident.  Dr. Hughes believes the claimant has no condition that warrants medical treatment or work restrictions, but he based his opinion on one evaluation.  We accord greater weight to the opinion of Dr. Danaceau, the treating orthopedist, and therefore find the employer has failed to meet its burden of proving that the claimant�s disability is no longer related to the work accident or that he is capable of pre-injury work.

Accordingly, the Opinion reinstating the claimant’s benefits 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: Santos F. Solis

LVI Serv., Inc.

American Home Assurance Co.

AIG Domestic Claims, Inc.

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Mario Baldivieso v. Labor Finders of Virginia

Saturday, March 21st, 2009

COURT OF APPEALS OF VIRGINIA

Present:Judges Benton, Bumgardner and Kelsey Argued at Alexandria, Virginia

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

MARIO BALDIVIESO

v.

LABOR FINDERS OF VIRGINIA, INC.

AND

AMERICAN CASUALTY COMPANY

MEMORANDUM OPINION  BY v. Record No. 0295-04-4

JUDGE JAMES W. BENTON, JR. FEBRUARY 8, 2005

Joshua M. Wulf (Semmes, Bowen & Semmes, on briefs), for appellants.Daniel P. Barrera on brief, for appellee. Labor Finders of Virginia, Inc. and its insurer contend the Workers’ Compensation Commission erred in ruling that Mario Baldivieso’s injury arose out of his employment. We disagree and affirm the award.

I. On appeal from the commission’s decision, we view the evidence in the light most favorable to Mario Baldivieso, who prevailed before the commission. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E. 2d 538, 539 (2003). So viewed, the evidence proved Waste Management contacted Labor Finders on June 25, 2002 and arranged for the services of Baldivieso as a temporary laborer on one of its trash collection trucks in Leesburg, Virginia. When Waste Management’s operations manager drove Baldivieso and other temporary workers to trucks at 7:45 a.m. to begin the day’s work, Baldivieso was wearing several shirts, which were* Pursuant to Code § 17.1-413, this opinion is not designated for publication. – 2 – described as a tee shirt underneath a long-sleeved, light flannel shirt. Using a bilingual worker to translate into Spanish, the manager urged Baldivieso and the other temporary workers to be wary of the potential danger of the heat. Waste Management supplied a loose fitting, nylon safety vest for Baldivieso to wear during his work.

At 8:30 a.m., Baldivieso began working on a truck driven by Kiki Gouveia. Baldivieso’s duties consisted of lifting trash cans and dumping the trash in the rear of the truck. As the truck traversed a route that included 750 residential homes and commercial sites, Baldivieso stood on the back step of the garbage truck, where there was no shade. For each unit, the trash ranges from one bag to three or four cans. Gouveia testified that the trash bags weighed an average of 15 to 20 pounds; the managers testified that the trash bins weighed an average of 35 to 100 pounds. Gouveia testified that when Baldivieso arrived, he had already completed part of the route and had about 600 sites remaining. He also testified that he would get out of the truck to help Baldivieso about 95% of the time and said he completed much of the “heavier lifting” himself. The manager estimated that because the driver and his helper customarily work together, Baldivieso lifted 60 or 70% of the bags. Gouveia described Baldivieso as a “slow, steady worker.” The weather was extremely hot and humid that day. The U.S. Department of Commerce recorded that the temperature reached a high of 93 degrees at Dulles Airport with extremely high levels of humidity. The manager’s report indicates the temperature reached 99 degrees in the area and was very humid.

At 11:00 a.m., Baldivieso joined Gouveia inside the truck while Gouveia drove to the unloading station. Gouveia did not use the air conditioning inside the truck during this drive or at anytime that day because it usually caused his truck to overheat. After unloading the truck, – 3 – Gouveia stopped to replenish the truck’s five gallon water cooler, which was empty, and then resumed work between 12:00 and 12:30 p.m. They did not stop for a formal lunch break because Gouveia tried to complete the route as quickly as possible. Gouveia testified that he hustled and “pushed to get [his] route completed” because his pay is the same regardless of the time he expends. Baldivieso did not eat anything during the day. Gouveia testified that they took several breaks to drink water throughout the day from the cooler mounted on the front of the truck. Although Waste Management provided Gatorade powder to aid hydration, Gouveia did not use it and preferred to fill the truck’s cooler with ice and water. Gouveia testified that Baldivieso was “drinking like a fish.”

At 4:30 p.m., with approximately 20 minutes of work remaining, Gouveia noticed that Baldivieso appeared to be having some difficulty. While he was sitting in the truck, Gouveia observed that Baldivieso was “having some problems” at the rear of the truck. When Gouveia approached Baldivieso, he appeared “disoriented,” was slurring his speech, and was shaking. Gouveia testified that he did not have any earlier indication that Baldivieso was ill; however, due to the language barrier they communicated essentially by gesturing.Gouveia called to request an ambulance to transport Baldivieso to a hospital. The hospital report indicates that Baldivieso’s temperature was 109 degrees and that he had suffered “probable heat stroke.” Baldivieso also had acute renal failure upon admission. Dr. Rosenthal later diagnosed probable brain damage. Dr. Page Fletcher diagnosed Baldivieso as having “post-traumatic dementia secondary to heat stroke.” Baldivieso has been confined to a nursing home since his release from the hospital.

The deputy commissioner found that Baldivieso performed medium to heavy labor throughout the day in hot and humid conditions. He also ruled that Baldivieso suffered a heat stroke as a result of this work activity. Relying on Imperial Trash Service v. Dotson, 18 – 4 – Va. App. 600, 445 S.E. 2d 716 (1994), the deputy commissioner ruled that the evidence proved Baldivieso suffered an injury by accident arising out of and in the course of his employment. Thus, the deputy commissioner entered an award for temporary total disability and medical benefits.

On review, the commission adopted the deputy commissioner’s summary of the evidence and rejected Labor Finders’ argument that the evidence failed to show extraordinary environmental conditions or work conditions distinguishable from other outdoor workers. This appeal followed. II. Determining whether an injury arose out of employment is a mixed question of law and fact. Norfolk Community Hospital v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576, 578 (2000). On appeal, we review questions of mixed law and fact de novo. Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002); Fairfax County School Board v. Rose, 29 Va. App. 32, 37, 509 S.E. 2d 525, 527 (1999).

To receive compensation for injuries, an employee must establish by preponderance of the evidence that he suffered an injury by accident “arising out of and in the course of [his] employment.” Code § 65.2-
101. To prove an injury arose out of the employment, the evidence must establish that the “conditions of the workplace . . . caused the injury.” Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E. 2d 305, 306 (1989). In making this determination, we employ the “actual risk test” to determine whether the employer exposed the employee to “the particular danger causing the injury, notwithstanding the public’s exposure generally to similar risks.” Kjellstrom v. Saunders, 42 Va. App. 673, 678, 594 S.E.2d 281, 283 (2004).[The] “actual risk test,” mean[s] that the employment must expose the employee to the particular danger causing the injury, notwithstanding the public’s exposure generally to similar risks.

Thus, if there is a causal connection between [the employee's] – 5 – injury and the conditions of her employment, then her injury arose out of her employment.Combs v. Virginia Power, 259 Va. 503, 510, 525 S.
E.2d 278, 282 (2000) (citation omitted). The principle is well established that compensation may be granted to an employee who suffered heat stroke as a result of exposure during working conditions. In Byrd v. Stonega Coke & Coal Co., 182 Va. 212, 28 S.E. 2d 725 (1944), an employee collapsed while removing coke from a hot oven for more than ten hours. The Supreme Court affirmed the award of compensation, concluding that the employee’s death “was the result of the conditions under which [he] was required to perform the duties of his employment.” Id. at 221, 28 S.E. 2d at 729. Noting that Byrd is the “leading heat stroke case,” we applied its rationale in Kjellstrom, where the employee was working as a “traffic flagger” on asphalt in extremely hot and humid conditions. 42 Va. App. at 679, 594 S.E.2d at 283. The evidence proved the employee was unable to take a break and collapsed after working seven hours. Affirming the award of compensation, we noted that “the commission found his exposure to the sun was beyond the norm” since he worked “in the open, in the sun, on asphalt and concrete, with no relief afforded by [his] employer.” Id. at 680, 594 S.E. 2d at 284.Labor Finders argues that Baldivieso’s injury did not arise out of the employment because the evidence is insufficient to support a finding of extraordinary working conditions. In Dotson, we addressed a factual circumstance almost identical to this case, where the employer similarly argued that “the nature of [the employee's] duties did not place him at greater risk for heatstroke beyond that to which the public is normally exposed.” 18 Va. App. at 603, 445 S.E. 2d at 718. There, we held the record supported the commission’s finding, including the following:The commission found that Dotson’s employment exposed him to hazards over and above those to which the public is exposed. The commission noted that “the public at large was not working – 6 – within the confines of a [non-air-conditioned] truck, repeatedly getting into and out of a truck, nor emptying from 350 to 400 containers into [it] . . . . This work was performed in temperatures which had reached almost 90 degrees at the time Dotson collapsed. In addition, the humidity had reached approximately 57 percent.” The commission could find, as it did, that the combination of the heat, the humidity, the physical exertion, and working in the non-air-conditioned truck caused Dotson to become dehydrated and to suffer a heatstroke. Id. at 604-05, 445 S.E. 2d at 719. As the Supreme Court has often repeated, an injury “arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.” Combs, 259 Va. at 509, 525 S.E. 2d at 282 (citation omitted); accord United Parcel Serv. of Am. v. Fetterman, 230 Va. 257, 258, 336 S.E. 2d 892, 893 (1985); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938). In this case, the commission found that Baldivieso suffered a heatstroke under similar conditions as Dotson and that it was caused by the working conditions. In particular, the commission made the following findings:[Baldivieso] 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.” [Baldivieso] 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, [Baldivieso's] temperature at the scene was noted to be 109 degrees, which obviously is not a condition commonly experienced by other outdoor workers.. . . In conclusion, the evidence was clear that [Baldivieso] 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 – 7 – 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 hold that this credible evidence in the record supports the commission’s findings that Baldivieso’s injury by accident arose out of his employment. Accordingly, we affirm the commission’s award.Affirmed.

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Rigoberto Rodriguez v. Facchina Construction Co.

Saturday, March 21st, 2009

VIRGINIA:          03/02/2004

IN THE WORKERS’ COMPENSATION COMMISSION

RIGOBERTO V. RODRIGUEZ, Claimant

Opinion by DUDLEY

Commissioner

v.   VWC File No. 205-63-07

FACCHINA CONSTRUCTION COMPANY, INC., Employer

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Insurer

Daniel P. Barrera, Esquire

for the Claimant.

(by priority mail)

Mark D. Crawford, Esquire

for the Defendants.

(by priority mail)

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

The employer has requested Review of the Deputy Commissioner’s May 19, 2003, Opinion awarding temporary total disability benefits and medical benefits.  The employer assigns error to the findings that the claimant injured his neck and left shoulder on May 18, 2001.  We affirm.

The claimant, a carpenter foreman, sustained a compensable injury by accident to his larynx on May 18, 2001.  The employer paid temporary total disability benefits from May 19 through July 8, 2001.

On October 30, 2002, the claimant sought benefits for injuries to his neck and left shoulder, in addition to the larynx injury.  The employer defended on the basis that there was no compensable injury to the neck or left shoulder.

At the Hearing, the claimant testified that on the day of the accident, he was stripping a wooden board.1 He stated that:  [T]he board broke and it hit me on my neck. (Tr. at 5).  The claimant indicated that the impact occurred under his chin in his neck area.  He said that he felt pressure from the board in his left arm and he could not hold the wood down.  The claimant described that when the board broke, it destroyed [his] neck and he fell backwards (Tr. at 7).  He explained that his shoulder twisted backwards and that he experienced a numbing pain.

The claimant explained that he was hospitalized after the incident.  He said that his major complaints were problems with his neck and arm.  The claimant testified that his treating physicians primarily focused upon reconstructing his throat.

Steven W. Ludden, supervisor, testified to working with the claimant when he returned to work after the injury.  Ludden said that he never mentioned injuring his shoulder.  He stated that the claimant only commented about his throat and neck.

Timothy Berres, safety officer, testified that the claimant complained to him about his neck and throat problems on February 8, 2002.  Berres stated that he discussed the injuries with him and that he reported shoulder problems.  He did not recall the claimant specifying what caused the shoulder condition.  Berres said that he observed him lifting objects, despite his claim that he could not lift due to his shoulder injury.

Carlos R. Lizama, project superintendent, testified to speaking with the claimant nearly every morning.  Lizama stated that he complained about his hurt throat, but no other injuries.  He denied that the claimant mentioned a neck problem.

The pertinent medical record reflects that on May 18, 2001, the claimant received treatment for a fractured larynx.  This treatment while hospitalized included a tracheotomy, laryngoscopy, esophagoscopy, open reduction of the laryngeal fractures, and a stent placement.  The hospital discharged the claimant to his home on May 22, 2001.

Dr. Deborah J. Doyle, otolaryngologist, assisted in the claimant’s May 18, 2001, surgeries.  Dr. Doyle’s office began monitoring the claimant’s recovery in July 2001.  On January 18, 2002, the claimant complained to Dr. Doyle about pain and weakness of the posterior neck which radiated down his left arm.  Dr. Doyle recommended an orthopedic consultation.

Dr. Tushar C. Patel, orthopedic surgeon, evaluated the claimant on January 31, 2002, for neck and left upper extremity complaints. The claimant reported that he fractured his larynx in an industrial accident on May 18, 2001, and that [h]e has had pain in his left arm. Dr. Patel diagnosed rotator cuff tendonitis.

On March 11, 2002, the claimant described suffering left shoulder and arm weakness to Dr. Doyle.  Dr. Doyle diagnosed neck and arm pain with a possible compression of the cervical spine.  She recommended an MRI scan of the claimant’s cervical spine and shoulder.

On June 5, 2002, Dr. Doyle responded to a question by claimant’s counsel.  She affirmed that the recommended MRI scan was causally related to the industrial accident.

On August 8, 2002, Dr. Patel advised that he had evaluated the claimant for neck pain with radiation down his left upper extremity.   Dr. Patel stated that a recent MRI scan showed mild disc bulges at the C4-C5 level.   Dr. Patel concluded that the claimant’s problems emanated from his left rotator cuff, which was a result of his fall and trauma.

An MRI scan was taken on August 14, 2002. The history noted that the claimant suffered left shoulder symptoms for past year.  The patient sustained a work-related injury.  No prior shoulder surgery.  The study showed tendinosis, perhaps a small tear in the superior glenoid labrum, and degenerative arthrosis in the left acromioclavicular joint.

Dr. Robert M. Dombrowski, orthopedist and associate of Dr. Patel, began treating the claimant on September 5, 2002, for complaints of shoulder pain. The claimant informed Dr. Dombrowski about the industrial accident and that the board forced his arm up in an abduction position.  Dr. Dombrowski diagnosed a partial rotator cuff tear and a superior labral tear.  Dr. Dombrowski recommended physical therapy and medication.

By letter dated November 5, 2002, Dr. Doyle wrote that she had recently evaluated the claimant for follow-up of a laryngeal fracture and shoulder trauma from an accident which occurred at work on May 18, 2001.   Dr. Doyle diagnosed dysphagia, throat tightness, a tethered scar, and left shoulder pain and trauma.  She suggested that the claimant participate in physical therapy for his shoulder condition.

On November 27, 2002, Dr. Patel responded to the claimant’s counsel’s question.  He affirmed that the claimant’s left arm and shoulder complaints were proximately caused by the industrial accident.

Dr. Joseph D. Linehan, orthopedic surgeon, performed an independent medical examination of the claimant on January 2, 2003.    The claimant told Dr. Linehan that the board broke and struck him in the throat and left shoulder.   He complained of left shoulder pain and denied suffering a previous injury to the shoulder.  Dr. Linehan opined that the claimant’s shoulder symptoms were not related to the industrial accident.  He explained:

[N]o where in the medical records do I find any reference to pain in the shoulder at the time of the original injury or in the physical therapy following his surgery for a fractured larynx.  The first reference to shoulder problems appears to be during a visit to . . . Dr. Patel.

. . . .

If there was indeed an acute injury to the left shoulder in the accident of May 18, 2001, there would be documentation of shoulder injury/pain in the contemporaneous medical records.  Additionally, the x-rays of the left shoulder show an old healed fracture of the left clavical, which could predispose to AC arthritis at some point later.

The Deputy Commissioner determined that the claimant proved that his compensable injury by accident caused injuries to his neck, throat/larynx, and left shoulder.  He granted more weight to the opinions of Dr. Doyle, Dr. Patel, and Dr. Dombrowski.

We initially note that we decline to assess an attorney’s fee and costs against the employer as requested by the claimant within his written statement.   We are not persuaded that the employer, from its prospective, defended or filed an appeal based on unreasonable grounds.  See Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 427 S.E.2d 215 (1993).

Hence, we consider the merits of the case.  The claimant bears the burden of proving that his shoulder and neck complaints are causally related to the industrial accident.  Watkins v. Halco Engineering, Inc., 225 Va. 97, 300 S.E.2d 761 (1983). The Commission relies primarily on medical evidence to determine the mechanism or cause of an injury.  Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968).

The record indeed reflects that the claimant did not mention shoulder or neck pain (separate from his larynx symptoms) to his treating physicians after the May 2001 injury by accident for many months.  In fact, it appears that his first complaints were voiced to Drs. Patel and Doyle in January 2002.  However, the claimant continued to report these symptoms, and his treating physicians related the complaints to the compensable accident.  The claimant never indicated or suggested that there was another cause of his symptoms.

Significantly, Dr. Patel and Dr. Doyle reported in November 2002 that the claimant’s shoulder condition resulted from the industrial accident.  Similarly, Dr. Doyle ordered an MRI scan of the shoulder/cervical spine and related the need for this diagnostic study to the accident.  This medical evidence is more persuasive than the testimony of co-workers who asserted that the claimant did not tell them about neck or shoulder complaints in relation to the injury.

Dr. Linehan disputed that the claimant’s shoulder condition was causally related to the industrial accident.  The Deputy Commissioner weighed the conflicting medical evidence and gave more weight to the claimant’s treating physicians.  We agree with this assessment, and find no grounds to reverse the Deputy Commissioner’s determination. See Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991) (Medical evidence is subject to the Commission’s consideration and weighing.).

The Opinion below is AFFIRMED, with the modification that the attorney’s fee to be paid by the claimant to Daniel P. Barrera, Esquire, is increased to a total of $750.

    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.

cc: Mr. Rigoberto V. Rodriguez

7600 Oxon Hill Road

    Oxon Hill, MD 20745
    Facchina Construction Company, Inc.
    9320 W & W Industrial Road
    La Plata, MD 20646
    Hartford Accident and Indemnity Company
    Workers’ Compensation Claim Center
    P.O. Box 1097
    Hunt Valley, MD 21030

1 Kathy Funes translated for the claimant at the Hearing.

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Injuries in Restaurants, Stores, and Commercial Establishments

Saturday, March 14th, 2009

One of the most common inquiries we receive is from people who have been injured in a commercial establishment. Usually there is fall on the premises and claim that the business was somehow negligent. One of my first questions to anyone who calls to speak with me about a fall at a commercial establishment is “Why did you fall?”. In any accident that occurs on commercial property there is usually a chain of events which will determine whether the injured victim receives any benefits.

A typical scenario is someone who falls in a store, and is injured. The manager of the store is called, along with an ambulance, and before the ambulance arrives the injured victim provides information to the store manager, and then is taken from the store on a stretcher. Once the injured accident victim begins to call the store, there is no response from the store and all the while the medical expenses begin to mount. By the time the injured party calls a lawyer, it might very well be too late to help.

By and large, the owner of a commercial establishment (i.e. a store) will be responsible to someone on their property if the store owner or its employees knew or should have known about a defect on the premises which could reasonably be expected to cause injury.

What might be a defect? If there is produce all over the floor of the grocery store which hasn’t been cleaned up; or water on the floor from a chronically leaking refrigerator/freezer; loose/missing floor tiles; a spill of some liquid on the floor which has been tracked through the store without anyone taking the time to clean it up, even a bathroom that hasn’t been cleaned with wet, slippery floors. The key in any of these cases is that the store’s employees knew or should have known about the dangerous condition.

In Virginia, Maryland, and Washington, D.C., these types of claims are problematic as all three of these jurisdictions are contributory negligence jurisdictions. If the injured accident victim caused or contributed to their injury, then their claim is barred. Any large chain store in the Washington, D.C. metropolitan area has polices in place to minimize their incidence of injuries. Bathrooms are checked every 30 minutes, aisles are checked and cleaned if necessary, broken/leaking equipment is taken out of harm’s way. When someone is hurt, there are set procedures in terms of how to deal with the injured party and what types of information they try to elicit from the injured victim before he or she leaves the store. In many instances the store manager will encourage the injured victim to go to the hospital to make sure that the victim can’t come up with new complaints later on.

One of the most important factors in any premise liability case is what caused the fall. Without some smoking gun as to why the person fell, it becomes difficult, if not impossible to prove liability on the part of the commercial establishment. One of the best results I was able to accomplish was a case where the woman saved her clothes following her fall at Walmart. The fact that they had become soaked with the dish detergent that had spilled in the aisle went a long way towards proving our case and allowed us to obtain a good result

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WORKERS COMPENSATION, PERSONAL INJURY CLAIMS AND SUBROGATION

Saturday, March 14th, 2009

There are many instances where workers compensation and personal injury claims intersect. It could be as simple as an auto accident caused by a third party during work hours, or it could be as complicated as a mechanical failure or some other product liability issue. In either case there are two claims generated by the same accident; a workers compensation claim and a personal injury claim. Many lawyers do not handle workers compensation, and so they encourage their client to hire two different lawyers. This is usually not the best scenario.

In a personal injury claim , the injured party claims against the negligent party for reimbursement of past and future medical expenses, pain and suffering and inconvenience, past and future lost wages, loss of earning capacity, compensation for permanent injury. In a workers’ compensation claim, the employer and its insurance carrier pay 100% of the injured employee’s lifetime medical expenses; 66 2/3% of the wages while the injured employee is taken out of work by their treating physician, and depending on the circumstances, compensation for the employee’s permanent injury. As is plainly evident, there are some areas where workers compensation and liability claims overlap.

Take for example a truck driver who is injured in an accident. His most immediate need is for medical treatment and for wage benefits so he can support his family. Assuming he qualifies as an employee, should he apply for workers compensation, he should receive his medical care paid for as well as a weekly benefit for the time he is out of work.

If that same truck driver makes a claim for injuries against the responsible driver, he should eventually receive lost wages, medical expenses, and all the other damages available in a personal injury claim. It is at this point that there is a collision between workers compensation and personal injury claims. Once the truck driver tries to settle his injury case, the workers compensation insurance carrier will complain that it is not fair that the injured worker receives payment of his medical expenses, and then recovers them a second time in the personal injury claim. The same is true for lost wage payments and payment of permanent partial disability.

This right of the workers compensation insurance carrier to claim for a reimbursement for what they paid in connection with a worker’s claim against a third party is called subrogation. Generally, workers compensation laws grant the employer and their insurance a lien on the recovery of the injured worker. At the point that there is a proposed settlement of the personal injury claim there is a need to try to negotiate the workers compensation lien, which usually requires some coordination between the two claims. Having one lawyer who handles both claims is in my opinion preferable to having two lawyers trying to work together to maximize the injured party’s recovery. One lawyer handling both claims is too simple a solution for what is otherwise a somewhat complicated problem.

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Finding Gratification In Helping injured Accident Victims

Saturday, March 14th, 2009

Yesterday an elderly former client arrived in my office without an appointment. It had been at least five years since I saw him last. Since I last saw him I had changed firms, changed addresses, but was still practicing as an injury lawyer in Old Town Alexandria, Virginia. I was surprised to see him, and while I couldn’t recall his name at first, I recognized his face immediately.

He told me that his children no longer lived with him, and that he living on his own in Alexandria. I recalled that he used to work as a driver, and asked him whether he had finally retired. He told me that he had, and I congratulated him.

He had a problem involving getting payment from Medicare, and had found me at my new offices. He said that after I represented him so many years ago, he always considered me to be his friend. I thanked him for that, and spent the time necessary to help him and point him in the right direction.

Many people do not realize that lawyers represent many clients at a time, each with their unique problems. I have always joked about this saying that this is the reason why my hair prematurely turned gray. But all joking aside, it is heavy burden to carr everyone else’s problems on your shoulders including your own. Many times over the past 25 years I have awakened in the middle of the night by some client’s problem I had been worried about, only to find myself jumping out of bed to write myself a note on how to handle the problem.

I will be the first to admit that being as lawyer is not always the most rewarding career. You have to revel in those moments when you have accomplished something, or have been able to help your client move forward with their life. Many people think it is all about the money, and truthfully it is not. While I might remember my big settlements, I have found much more satisfaction when my clients have thanked me for a job well done.

Yesterday was a difficult day at the office. I was consumed by telephone calls, appointments , and interruptions. So when my elderly client told me that “he always considered me his friend”, suddenly it all became worthwhile.

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