Safeway, Incorporated v. Lalit Ram Arya ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
SAFEWAY, INCORPORATED
MEMORANDUM OPINION*
v. Record No. 2024-02-4 PER CURIAM
DECEMBER 3, 2002
LALIT RAM ARYA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Charles P. Monroe; Duncan & Hopkins, P.C.,
on brief), for appellant.
(James E. Swiger; Swiger & Cay, on brief),
for appellee.
Safeway, Inc. (employer) contends the Workers' Compensation
Commission erred in finding that Lalit Ram Arya (claimant)
proved that (1) his left shoulder/arm condition constitutes a
compensable consequence of his compensable February 17, 2000
right shoulder injury; and (2) he reasonably marketed his
residual work capacity from March 9, 2001 through May 8, 2001,
and from August 20, 2001 through November 14, 2001. Upon
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Compensable Consequence
[The] doctrine [of compensable
consequences], also known as the chain of
causation rule, provides that "'where the
chain of causation from the original
industrial injury to the condition for which
compensation is sought is direct, and not
interrupted by any intervening cause
attributable to the [employee's] own
intentional conduct, then the subsequent
[condition] should be compensable.'"
Food Distributors v. Estate of Ball, 24 Va. App. 692, 697, 485
S.E.2d 155, 158 (1997) (citation omitted). "The simplest
application of this principle is the rule that all the medical
consequences and sequelae that flow from the primary injury are
compensable." American Filtrona Co. v. Hanford, 16 Va. App.
159, 163, 428 S.E.2d 511, 513 (1993) (citation omitted)
(emphasis added).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that claimant proved that his left shoulder/arm
condition was a compensable consequence of his initial right
shoulder injury, the commission found as follows:
[C]laimant established that his left
shoulder surgery was necessitated by the
increased use of the appendage because of
the limitations on his right shoulder. We
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are cognizant as noted in our previous
opinions that the claimant saw a physician
for left shoulder pain in 1995. However,
the claimant continued to perform his
regular work and sought no additional
treatment until April 3, 2001, after his
second right shoulder surgery. Dr. [Ramesh
G.] Chandra the treating physician who
performed the surgeries on the claimant has
causally connected the left shoulder problem
to the additional use. He had an
opportunity to observe the left shoulder
during the surgical procedure and noted that
there was not a significant pre-existing
problem. We find his opinion to be more
persuasive than Dr. [Leo B.] Van Herpe who
examined the claimant on one occasion and
based much of his findings on his review of
Dr. Chandra's reports and tests.
Dr. Chandra's medical records and opinions, coupled with
claimant's testimony, constitute credible evidence to support
the commission's finding that claimant proved that his left
shoulder/arm condition was a compensable consequence of his
compensable February 17, 2000 right shoulder injury. "Questions
raised by conflicting medical opinions must be decided by the
commission." Penley v. Island Creek Coal Co., 8 Va. App. 310,
318, 381 S.E.2d 231, 236 (1989). The commission was entitled to
weigh the medical evidence, to accept Dr. Chandra's opinion, and
to reject Dr. Van Herpe's contrary opinion. "In determining
whether credible evidence exists, the appellate court does not
retry the facts, reweigh the preponderance of the evidence, or
make its own determination of the credibility of the witnesses."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
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II. Marketing
A partially disabled employee is required to make
reasonable efforts to market his residual earning capacity to be
entitled to receive continued benefits. See National Linen
Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989).
"In determining whether a claimant has made a reasonable effort
to market his remaining work capacity, we view the evidence in
the light most favorable to . . . the prevailing party before
the commission." Id. at 270, 380 S.E.2d at 33. "What
constitutes a reasonable marketing effort depends on the facts
and circumstances of each case." The Greif Cos. v. Sipe, 16
Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) (citation
omitted). When the commission's factual determinations are
supported by credible evidence, they will not be disturbed on
appeal. Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217,
220-21, 527 S.E.2d 451, 453 (2000). The commission determines
the weight to give the various criteria it considers. National
Linen, 8 Va. App. at 272, 380 S.E.2d at 34 (citing relevant
factors).
In ruling that claimant proved he made reasonable efforts
to market his residual work capacity during the periods he was
released to light duty work, the commission found as follows:
The claimant has a five pound lifting
restriction on each arm. While the
claimant's education in India is the
equivalent of an associate degree, he has a
very limited ability to read and write
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English. After his light duty position was
terminated in March of 2001, he began
seeking work through friends. He has
applied for cashier and restaurant
positions. He registered with the VEC in
April. On May 8, 2001, he had surgery on
the left shoulder and was totally disabled.
Under the circumstances, we find that the
claimant made a sufficient effort to find
work during this period. We further find
that after the claimant was again released
to light duty in August of 2001, he as
supported by the documentary evidence made a
good faith effort to secure employment
within his very limited restrictions of not
lifting over 5 pounds with either arm.
Claimant has a limited command of English and was
restricted from lifting over five pounds with either arm during
the relevant time periods. Yet, after the termination of his
light duty position, he looked for numerous jobs as a cashier
and in the restaurant business through friends and through
visits to various business locations. He registered with the
VEC in April 2001. He produced copies of job applications he
completed at various businesses he visited and other written
documentation of his job search efforts. In light of claimant's
limitations, credible evidence supports the commission's finding
that he made a good faith effort to market his residual work
capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
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