Tradesmen International, Inc. v. Gary T. Cox ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia
TRADESMEN INTERNATIONAL, INC. AND
LUMBERMEN'S UNDERWRITING ALLIANCE
MEMORANDUM OPINION* BY
v. Record No. 1726-01-4 JUDGE NELSON T. OVERTON
MARCH 19, 2002
GARY T. COX
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Scott C. Ford (McCandlish Kaine, P.C., on
brief), for appellants.
No brief or argument for appellee.
Tradesmen International, Inc., and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission ("commission") unreasonably interpreted Rule 1.4(C)
when it dismissed employer's July 31, 2000 application and
required benefits payments until a successive application was
filed on January 3, 2001. Finding no error, we affirm the
commission's decision.
Gary T. Cox ("claimant") suffered a compensable injury – a
hernia – on April 24, 2000. Upon examining claimant on May 1,
2000, Dr. Ronald Kurstin found that claimant had a right
inguinal bulge that "occurred after working on the job," and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
also noted that claimant complained of "arm pain on the right
near the elbow, which occurred at similar type of activity."
Dr. Kurstin noted the following recommendation: "Giving him
enough time to recuperate from his arm, I would plan on doing
him around the first week in June." Dr. Kurstin performed
claimant's surgery on June 6, 2000, and on June 16, 2000,
completed a work restriction form indicating that claimant was
not to return to construction work for "at least 4 weeks."
On July 26, 2000, Dr. Kurstin completed a "questionnaire"
concerning claimant's scheduling of his surgery. Dr. Kurstin
indicated that he could have performed the surgery promptly
after claimant's May 1, 2000 office visit, but that claimant
"delayed his surgery until June 6, 2000, because of unrelated
elbow complaints." The word "unrelated" was then marked through
and initialed by Dr. Kurstin. Dr. Kurstin indicated that
because of claimant's elbow problem, he did not agree that
claimant could have returned to work sooner had the surgery been
performed sooner.
On July 31, 2000, employer filed an application to
terminate benefits as of May 1, 2000, based on claimant's
alleged refusal of medical treatment by unnecessarily postponing
recommended surgery.
Claimant was released to pre-injury work on August 7, 2000.
On January 3, 2001, the commission received a second application
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from employer alleging that Dr. Kurstin released claimant to
pre-injury work as of August 7, 2000. Employer clarified that
the application was a "successive" application and alleged that
benefits were last paid through July 17, 2000.
When a challenge is made to the commission's construction
of its rules, "our review is limited to a determination whether
the commission's interpretation was reasonable." Classic
Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761, 763
(1989). Under Commission Rule 1.4(C)(2), compensation shall be
paid through the date the application was filed unless the
application alleges refusal of medical treatment, in which case
the payment "shall be made to the date of the refusal or 14 days
before filing, whichever is later." Commission Rule 1.4(C)(4)
states that compensation shall be paid through the date the
application was filed unless "[a]n employer files successive
applications, in which case compensation shall be paid through
the date required by the first application. If the first
application is rejected, payment shall be made through the date
required by the second application."
Claimant underwent the recommended surgery on June 6, 2000;
employer's first application was filed on July 31, 2000. At the
hearing on this application, held on January 29, 2001, the
deputy commissioner dismissed the application because any
refusal by claimant to undergo the recommended medical treatment
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was "cured" by the June 6, 2000 surgery, well before the
application was filed. Therefore, employer failed to show
refusal of medical treatment, and the deputy commissioner did
not err in dismissing the first application.
After dismissing the first application, the deputy
commissioner considered employer's second application. Under
these circumstances, Rule 1.4(C) requires payment to be made
through the date the second application is filed. Employer's
argument that Rule 1.4(C)(4) technically applies to "rejected"
first applications as opposed to "dismissed" first applications
is misplaced. See Day v. Shenandoah Fiberglass Prods. Co.,
Inc., 70 O.I.C. 73, 74-75 (1991) ("If the first application had
been dismissed, the employer would have had to pay benefits to
the date the second application was filed."). The commission
did not err in applying Rule 1.4(C)(4) to require employer to
make payments until the second application was filed on January
3, 2001.
The commission's interpretation of its rules was reasonable.
Accordingly, we affirm the decision of the commission.
Affirmed.
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