Washington Metro Transit Auth v. Kennedy T. Luong ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY
MEMORANDUM OPINION* BY
v. Record No. 1125-01-4 JUDGE NELSON T. OVERTON
MARCH 19, 2002
KENNEDY TUAN LUONG
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Alan D. Sundburg (Robert C. Baker, Jr.;
Mell, Brownell & Baker, Chartered, on brief),
for appellant.
Julie H. Heiden (Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellee.
Washington Metropolitan Area Transit Authority (employer)
appeals a decision of the Workers' Compensation Commission
awarding temporary partial disability benefits to Kennedy Tuan
Luong (claimant) beginning December 13, 1999. Employer contends
the commission erred in finding (1) employer failed to prove
that claimant was capable of performing all of the duties of his
pre-injury work, without restrictions, as of December 13, 1999
based on its finding that claimant was restricted from working
overtime hours; and (2) Rule 1.2(B) of the Rules of the Virginia
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Workers' Compensation Commission did not limit claimant's June
13, 2000 claim seeking temporary partial disability benefits.
Finding no error, we affirm.
I.
"General principles of workman's compensation law provide
that 'in an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). Unless we can say as a matter of law that
employer's evidence sustained its burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
On April 28, 1999, claimant sustained a compensable injury
by accident when he slipped and fell on a "running rail" while
working for employer. Pursuant to a Memorandum of Agreement
executed by the parties on June 21, 1999, they agreed that
claimant suffered a head contusion, cervical strain, and scalp
laceration in the accident, while earning an average weekly wage
of $1,170.74. Pursuant to the parties' agreement, on July 9,
1999, the commission entered an award for ongoing temporary
- 2 -
total disability benefits at the statutory maximum rate of
$534 per week.
On March 17, 2000, employer filed an application seeking
termination or suspension of claimant's outstanding award of
temporary total disability benefits. In support of its
application, employer relied upon the December 6, 1999 report of
Dr. Lawrence E. Zarchin, claimant's treating physician, wherein
Dr. Zarchin released claimant to return to his pre-injury work
as of December 13, 1999.
Claimant testified that when he returned to work on
December 13, 1999, he understood from his physician that he was
not to work more than forty hours per week. Claimant stated
that employer did not allow him to sign up for overtime work
assignments because of this restriction. Thus, claimant's
average weekly wage after his return to his pre-injury work was
$792.55 per week compared to the stipulated pre-injury average
weekly wage of $1,170.74.
In March 2000, Dr. Zarchin, in response to a letter from
claimant's counsel, confirmed that the December 1999 release of
claimant did not include overtime work. Dr. Zarchin
specifically noted that claimant "was limited to forty hours at
time of return to work." Dr. Zarchin also causally related this
restriction to claimant's compensable April 28, 1999 injury by
accident.
- 3 -
Based upon claimant's testimony and Dr. Zarchin's medical
reports and opinions, the commission, as fact finder, was
entitled to conclude that claimant had not been "released to
fully unrestricted duties on December 13, 1999" and that he "was
under a medical restriction that prevented him from applying
for, or accepting work in excess of forty hours per week." In
its role as fact finder, the commission was entitled to give
more probative weight to Dr. Zarchin's opinions than to the
opinions of Drs. Tran and Restak.
Based upon this record, we cannot find as a matter of law
that employer's evidence sustained its burden of proving that
claimant had been released to perform all of the duties of his
pre-injury work as of December 13, 1999.
II.
Employer contends the commission erred in finding that the
ninety-day rule contained in Rule 1.2(B) did not limit
claimant's June 13, 2000 claim for benefits seeking temporary
partial disability benefits beginning December 13, 1999 due to
his inability to work overtime hours.
The commission has the power to make and
enforce rules not inconsistent with the
Workers' Compensation Act in order to carry
out the provisions of the Act.
Additionally, the commission has the power
to interpret its own rules. When a
challenge is made to the commission's
construction of its rules, the appellate
court's review is limited to a determination
of whether the commission's interpretation
was reasonable. The commission's
- 4 -
interpretation will be accorded great
deference and will not be set aside unless
arbitrary or capricious.
Rusty's Welding Serv., Inc. v. Gibson, 29 Va. App. 119, 129 n.2,
510 S.E.2d 255, 260 n.2 (1999) (en banc) (citations omitted).
Rule 1.2(B), which governs employee's claims on the ground
of change in condition or other relief, provides in pertinent
part that "[a]dditional compensation may not be awarded more
than 90 days before the filing of the claim with the
Commission."
In affirming the deputy commissioner's finding that "Rule
1.2 is not applicable given the procedural posture of the case,"
the commission found as follows:
[E]mployer could have avoided the
"prejudice" it is asserting it suffered in
this case, had it merely filed - - in a
timely manner - - an application to
terminate or suspend the claimant's open
award. With an open award outstanding, this
was its duty, not the claimant's. The
timely submission of the employer's
application would have placed in issue the
claimant's entitlement to, or lack of
entitlement to further benefits under the
open award, and the 90-day limitation of
Rule 1.2 would likely not have been at
issue. Instead, the employer failed to
submit its application until six months
after its [sic] unilaterally suspended
benefits, and now argues that the claimant
should be prevented from claiming payments
of benefits more than ninety days before his
"change in condition" application on June
13, 2000. To construe the Commission rules
in this fashion would . . . penalize the
claimant for the employer's failure to file
a timely application for hearing.
- 5 -
Therefore, we construe the letter claim
submitted by claimant's counsel on June 13,
2000, to have been merely a protective
application, which was completely
unnecessary in light of the still
outstanding award of temporary total
disability benefits.
Based upon the procedural posture of this case, we find
that the commission's application of Rule 1.2(B) was reasonable
and consistent with provisions of the Act and, therefore, will
not be set aside by this Court.
For these reasons, we affirm the commission's decision.
Affirmed.
- 6 -