Kevin Christopher Knott v. Virginia Beach Mariners, Inc. and Uninsured Employer's Fund ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Alston and Senior Judge Coleman
KEVIN CHRISTOPHER KNOTT
MEMORANDUM OPINION *
v. Record No. 0634-09-1 PER CURIAM
DECEMBER 8, 2009
VIRGINIA BEACH MARINERS, INC. AND
UNINSURED EMPLOYER’S FUND
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Kevin Christopher Knott, pro se, on brief). Appellant submitting
on brief.
(Robert A. Rapaport; Clarke, Dolph, Rapaport, Hull, Brunick &
Garriott, P.L.C., on brief), for appellee Uninsured Employer’s
Fund. Appellee Uninsured Employer’s Fund submitting on brief.
No brief for appellee Virginia Beach Mariners, Inc.
Kevin Christopher Knott (claimant) appeals the February 27, 2009 decision of the
Workers’ Compensation Commission (commission) denying payment of certain medical benefits
and awarding a credit to employer against future compensation. 1 On appeal, claimant contends
the treatment of his right shoulder and neck are encompassed within his compensable upper back
injury. Therefore, he contends his claim is not barred by Code § 65.2-601’s two-year statute of
limitations and payment of certain medical benefits is appropriate. We agree, and reverse the
commission’s decision.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The commission’s February 27, 2009 opinion states that claimant also requested review
of the deputy commissioner’s decision to terminate temporary partial disability benefits.
Claimant did not present this issue to the Court. As such, we do not address the termination of
claimant’s temporary partial disability benefits.
I. BACKGROUND
“On appeal ‘we view the evidence in the light most favorable to [employer], the party
prevailing before the commission.’” Simms v. Ruby Tuesday’s, Inc., 54 Va. App. 388, 390, 679
S.E.2d 555, 556 (2008) (quoting Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525
S.E.2d 55, 56 (2008) (alteration in original). So viewed, the evidence established that claimant, a
professional soccer player for the Virginia Beach Mariners, sustained a compensable workplace
injury on April 5, 2005 when he collided with another soccer player at practice, fell from five or
six feet in the air, and “rolled over [a] pole landing and striking the upper back.” On November
28, 2006, claimant was awarded temporary total disability payments and medical benefits for the
workplace injury to his back “for as long as necessary pursuant to [] Code § 65.2-603.”
Over the course of his treatment, claimant was diagnosed with a sprain/strain of the
thoracic spine, rib dysfunction, cervical instability, and upper back pain localized to the right
scapular region. Claimant received numerous treatments, including physical therapy, trigger
point injections, steroid treatments, acupuncture, myofascial therapies, scapular mobilization
techniques, intra-articular injections, and prolotherapy treatments. 2 When claimant’s pain could
not be controlled with treatment, he was not cleared to play soccer for the 2006 season. He
retired from professional soccer and accepted a position as director of coaching with a local
youth soccer program.
2
Although the Uninsured Employer’s Fund (UEF) requested additional information
before paying for some of claimant’s medical treatment, prior to the treatment provided by Johns
Hopkins Physical Medicine and Rehabilitation and Atlantic Physical Therapy, the UEF deemed
all of claimant’s treatment compensable under the November 28, 2006 order.
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On December 28, 2007, claimant filed a claim for benefits to hold employer and UEF 3
liable for the cost of medical treatment provided by and through Johns Hopkins Physical
Medicine and Rehabilitation (including treatment by Atlantic Physical Therapy). The UEF
disputed claimant’s entitlement to medical treatment for his right shoulder and neck on the
ground that appellant failed to file a claim for injury to his shoulder or neck within two years of
the workplace injury in violation of Code § 65.2-601.
On July 28, 2008, a deputy commissioner ruled on the matter. He concluded the only
body part covered by the award of medical benefits was the injury to the back, and because
claimant failed to preserve his claim for the right shoulder and neck injury, the claim was
time-barred. On review, the full commission agreed with the deputy commissioner and
concluded that the UEF was not responsible for any treatment of claimant’s neck and right
shoulder because the November 28, 2006 award was limited to the treatment of claimant’s back.
This appeal followed.
II. ANALYSIS
“On appeal, we are guided by the principle that the Workers’ Compensation Act ‘is
highly remedial.’” Corporate Resource Management v. Southers, 51 Va. App. 118, 126, 655
S.E.2d 34, 38 (2008) (en banc) (quoting Henderson v. Cent. Tel. Co., 233 Va. 377, 382, 355
S.E.2d 596, 599 (1987)). “Thus, the Workers’ Compensation Act should be ‘liberally construed
to advance its purpose of compensating employees for accidental injuries resulting from the
hazards of the employment[.]’” Masonite Holdings, Inc. v. Cubbage, 53 Va. App. 13, 20, 668
S.E.2d 809, 812 (2008) (quoting Henderson, 233 Va. at 382, 355 S.E.2d at 599)). “‘Although we
are not bound by the commission’s legal analysis on this or prior cases, we give great weight to
3
The commission determined claimant’s employer, Virginia Beach Mariners, Inc., failed
to maintain workers’ compensation insurance. The UEF then assumed responsibility for
payment of claimant’s medical bills.
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the commission’s construction of the Act, and we defer to the commission’s factual findings if
supported by credible evidence in the record.’” Southers, 51 Va. App. at 126, 655 S.E.2d at 38(quoting Bay Concrete Construction Co. v. Davis, 43 Va. App. 528, 538-39, 600 S.E.2d 144, 150
(2004)).
Code § 65.2-601 provides, “[t]he right to compensation under [the Workers’
Compensation Act] shall be forever barred[] unless a claim be filed with the Commission within
two years after the accident.” “Statutes of limitations ‘are designed to suppress fraudulent and
stale claims from being asserted after a great lapse of time, to the surprise of the parties, when
the evidence may have been lost, the facts may have become obscure because of a defective
memory, or the witnesses have died or disappeared.’” Southers, 51 Va. App. at 127, 655 S.E.2d
at 38 (quoting Street v. Consumers Mining Corp., 185 Va. 561, 575, 39 S.E.2d 271, 277 (1946)).
“Whether the information filed with the commission is sufficient to construe a timely filed claim
for a particular injury is a question of fact, and the commission’s finding will not be disturbed on
appeal if supported by credible evidence.” Id.The facts of this case are similar to the facts in Southers, and distinguishable from
Shawley v. Shea-Ball Construction Company, 216 Va. 442, 219 S.E.2d 849 (1975). In Southers,
claimant reported falling on her left shoulder. Southers’ employer accepted as compensable the
injury to her shoulder. “[C]ontemporaneously with the accident and prior to the expiration of the
statute of limitations, claimant ‘consistently complained of pain in the lateral section of her [left]
shoulder, which at times included neck pain and radiation . . . up the neck.’” Southers, 51
Va. App. at 129, 655 S.E.2d at 39 (alteration in original). There, we concluded that employer
had timely notice of claimant’s assertion that she injured her left shoulder area, and claimant
received treatment for her neck, an interrelated body part. In contrast, the Court in Shawley
upheld “the commission’s finding that a timely claim for injuries to an employee’s left ankle and
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right hip did not preserve a claim for injuries to his back and right ankle where the medical
records gave no indication of any injuries to the back and right ankle until after the statute of
limitations had passed.” Id. at 128, 655 S.E.2d at 39 (emphasis added).
Here, as in Southers, claimant did not suffer injuries to two separate body parts.
Claimant complained of and was treated for pain in the upper back, including the “scapular
region” and “trapezius” following his workplace injury. 4 Moreover, although the language of
the November 28, 2006 award states only that claimant’s injury to the back is compensable, we
agree with the conclusion in Deputy Commissioner Diamond’s dissenting opinion that
[t]he injury in this case has always been identified as an injury to
the thoracic spine. The claimant’s pain originates in the upper
right back.
The nature of the injury is muscular rather than a surgical
disc problem. Whereas discs and bone may be separate, muscles
are not.
* * * * * * *
I do not agree that the doctors should be prohibited from
performing necessary treatment for the claimant’s back injury
simply because of the anatomical reality that the upper back
muscle is connected to the muscles of other regions.
(Emphasis added). As such, we conclude the commission’s finding that the UEF is not liable for
the medical treatment claimant received from Johns Hopkins Physical Medicine and
Rehabilitation and Atlantic Physical Therapy for his neck and right shoulder pain is not
supported by credible evidence.
4
The “scapular region” includes the area around “the shoulder blade; the flat triangular
bone in the back of the shoulder in a man . . . .” Webster’s New Universal Unabridged
Dictionary 1617 (2d ed. 1983). The trapezius is defined as “either of a pair of large muscles of
the back and neck, which draw the head backward or sidewise, rotate the scapula . . . .” Id. at
1942.
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III. CONCLUSION
We reverse the decision of the commission, and remand to the commission for a ruling
consistent with this opinion.
Reversed and remanded.
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