Snap Contracting Corporation v. Eastwood ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
SNAP CONTRACTING CORPORATION AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1851-99-2 JUDGE DONALD W. LEMONS
MARCH 28, 2000
DONALD KENT EASTWOOD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy III (Mary Louise Kramer;
William B. Judkins; Sands, Anderson, Marks &
Miller, on briefs), for appellants.
Richard B. Donaldson, Jr. (Mai Lan F. Isler;
Jones, Blechman, Woltz & Kelly, P.C., on
brief), for appellee.
Snap Contracting Corporation and Hartford Underwriters
Insurance Company ("employer") appeal the decision of the
Virginia Workers' Compensation Commission reversing the deputy
commissioner's decision to suspend temporary total disability
benefits on the grounds of failure to market residual work
capacity, and ordering the reinstatement of Donald K. Eastwood's
compensation benefits. Finding no error, we affirm.
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Donald K. Eastwood suffered a compensable back injury on
December 9, 1991. On March 23, 1992, pursuant to agreements of
the parties, Eastwood was awarded temporary total disability
benefits and then temporary partial disability benefits. By an
award entered April 9, 1993, the commission directed employer to
pay temporary total disability benefits beginning October 21,
1992. Medical records show that Dr. Thomas M. Stiles, an
orthopedic surgeon, who had treated Eastwood periodically before
December 9, 1991, treated him for this work injury as well. In
an opinion dated November 9, 1993, the commission determined
that Eastwood injured his left ankle as a consequence of the
compensable work accident and awarded him further medical
benefits for the ankle injury.
On December 13, 1996, the employer filed an Application for
Hearing seeking to terminate Eastwood's temporary total
disability benefits contending that he had unreasonably refused
medical treatment, that he had returned to work without
reporting his earnings, that he was perpetrating a fraud through
his ongoing insistence that he remained entitled to benefits and
that he was no longer disabled as a result of the accident.
By opinion issued February 18, 1998, the deputy
commissioner found that Eastwood continued to be disabled from
his pre-injury employment as a result of injuries related to his
work accident. The deputy commissioner also found that
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Eastwood, without justification, failed to enter a work
hardening program that was prescribed by Dr. Lisa Barr. 1
Compensation benefits were suspended as of January 23, 1996.
The deputy commissioner found, however, that the employer failed
to offer Eastwood a panel of physicians within a reasonable time
after Dr. Barr withdrew as Eastwood's treating physician and
that treatment obtained later from Dr. Stiles established Dr.
Stiles as the newly authorized treating physician. Finally, the
deputy commissioner found that Eastwood earned $200 as a bouncer
in 1995 while under the open award and $2,080 as a construction
worker in 1997.
Both parties moved for reconsideration and the deputy
commissioner vacated the February 18, 1998 opinion by order
issued March 10, 1998. A new opinion was issued on May 15, 1998
affirming the February 18th findings of fact and conclusions of
law. In addition, the deputy commissioner held that Eastwood,
by receiving treatment from Dr. Stiles after Dr. Barr withdrew
as his treating physician, cured his unreasonable refusal of
medical care as of August 7, 1996. The deputy commissioner
found, however, that Eastwood did not prove that he marketed his
residual capacity after the cure and, therefore, the suspension
1
In an opinion issued November 1, 1995, the deputy
commissioner approved the employer's application for a change in
physicians and designated Dr. Barr as the new authorized
physician. The full commission affirmed the deputy
commissioner's opinion on May 6, 1996.
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of benefits for refusing medical care was continued. The deputy
commissioner further directed that the employer should receive a
credit in the amount of $133.36 for monies earned in 1995 while
under the open award pursuant to Code § 65.2-712.
Eastwood appealed to the full commission, challenging his
obligation to prove marketing of residual capacity based on the
fact that neither party raised it as an issue and, if such an
obligation existed, regardless of the parties' failure to raise
the issue, that he should have had the chance to offer evidence
tending to establish adequate marketing.
By opinion dated July 2, 1999, the commission reversed the
deputy commissioner's decision suspending the award of temporary
total disability benefits and held that no duty to market
residual capacity existed. During the period that Eastwood
unjustifiably refused medical treatment, he was being paid
compensation pursuant to a pre-existing award. By the time the
employer filed its Application for Hearing challenging
Eastwood's receipt of temporary total disability benefits on
December 13, 1996, however, he had cured the unjustified refusal
by resuming medical treatment with Dr. Stiles. The commission
held that "the Deputy Commissioner could have only properly
suspended benefits for the unjustified refusal as of the last
day for which compensation was paid pursuant to the
[outstanding] award." Since the refusal was cured before the
last day for which compensation was paid pursuant to the
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outstanding award, the suspension of the award for that period
was moot. The employer was ordered to reinstate compensation
payments beginning December 16, 1996, the day after the last
payment of compensation pursuant to the April 9, 1993 award, and
continuing until conditions justify a modification.
II. FAILURE TO MARKET RESIDUAL WORK CAPACITY
A claimant receiving compensation for temporary total
disability is under no duty to market remaining work capacity.
See, e.g., Georgia Pacific Corp. v. Dancy, 17 Va. App. 128, 134,
435 S.E.2d 898, 901-02 (1993).
Here the unjustified refusal of medical treatment resulted
in suspension of the award. The refusal, however, was cured
before the end of the benefit period and before employer filed
its application. The commission properly reversed the deputy
commissioner's determination that Eastwood failed to market
residual work capacity. At that time, Eastwood was under an
outstanding award for total disability and had no duty to
market.
III. CURE OF REFUSAL OF MEDICAL TREATMENT
Eastwood appealed the deputy commissioner's decision
regarding the issue of failure to market residual work capacity.
The employer did not appeal to the full commission the holding
that claimant cured his unjustified refusal of medical
treatment; consequently, we are barred from reviewing that
holding on appeal. See Rule 5A:18.
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IV. DISCRETION OF THE COMMISSION
Rule 3.1 of the Rules of the Virginia Workers' Compensation
Commission provides, in pertinent part:
A request for review should assign as error
specific findings of fact and conclusions of
law. Failure of a party to assign any
specific error in its request for review may
be deemed by the Commission to be a waiver
of the party's right to consideration of
that error. The Commission may, however, on
its own motion, address any error and
correct any decision on review if such
action is considered to be necessary for
just determination of the issues.
In this case the commission lawfully exercised its discretion
and declined to consider issues not raised by the employer. See
Brushy Ridge Coal Co., Inc. v. Blevins, 6 Va. App. 73, 78, 367
S.E.2d 204, 207 (1988).
V. CONCLUSION
We find no error in the commission's decision and no abuse
of discretion in its review of the rulings of the deputy
commissioner.
Affirmed.
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