Carnell Carrington v. Aquatic Company and Insurance Company of the State of Pennsylvania ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Russell and AtLee
UNPUBLISHED
Argued at Richmond, Virginia
CARNELL CARRINGTON
MEMORANDUM OPINION* BY
v. Record No. 0628-17-2 JUDGE RICHARD Y. ATLEE, JR.
JANUARY 23, 2018
AQUATIC COMPANY AND
INSURANCE COMPANY OF THE STATE
OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Michael J. Beste (Reinhardt/Harper/Davis, PLC, on brief), for
appellant.
John C. Johnson (Frith Anderson & Peake, P.C., on brief), for
appellees.
Carnell Carrington appeals a decision of the Commission denying his request for
disability benefits. We find no error, and affirm the decision.
I. BACKGROUND
On appeal of Commission decisions, “the evidence and all reasonable inferences that may
be drawn from that evidence are viewed in the light most favorable to the party prevailing
below.” UPS v. Prince, 63 Va. App. 702, 704, 762 S.E.2d 800, 801 (2014) (quoting Snyder v.
City of Richmond Police Dep’t, 62 Va. App. 405, 408, 748 S.E.2d 650, 652 (2013)). The
Commission found in favor of Aquatic Company and Insurance Company of the State of
Pennsylvania (collectively “employer”). The facts were as follows.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Aquatic Company hired Carrington in 1992. At the time of the hire, Aquatic Company
knew that Carrington suffered from polycystic kidney disease.1 In 2013, Carrington suffered a
compensable injury to his left arm. The injury was unrelated to his polycystic kidney disease.
The Commission entered a medical award in 2014 for the injury to his arm. In 2015, Carrington
sought temporary total disability, beginning October 2, 2014 and continuing. The Commission
summarized the facts surrounding Carrington’s claim as follow:
He missed three weeks from work following his initial surgery and
then returned to light duty with the employer, working 40 hours
per week, using his right arm, beginning in November 2013. The
parties agree the claimant has permanent work restrictions
attributable to his left arm injury.
The claimant worked light duty for the employer through
October 2, 2014. On that date, he was admitted to the hospital
with kidney failure, a complication of his underlying polycystic
kidney disease. He remained hospitalized through February 2015
and after discharge, he received two months of home health care.
On cross-examination, the claimant agreed that prior to his
August 2013 work accident, he was working without any
restrictions. He was taking medication for elevated blood pressure
and for his kidneys. He had no other health concerns. He agreed
that “even though you had this kidney disease, you weren’t
disabled from it” and “[i]t had not manifested itself until the
following year when [he] had to go back to [the hospital].”
(Citation omitted) (alterations in original). The parties submitted written stipulations, including
that Carrington had “been unable to work from October 2, 2014 and continuing due to polycystic
kidney disease, while at the same time partially disabled due to his work-related left arm injury.”
1
This disease did not affect the type of work Carrington did for Aquatic Company,
although it did require him to miss work on occasion. Per the Commission, the disease required
that Carrington “undergo treatment every two weeks, missing work during this treatment. In
2006, the claimant underwent a kidney transplant, and he missed approximately four months
from work in connection with that surgery. He continued to undergo treatment for his kidney
condition after the transplant, attending appointments every three months.”
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Employer defended on the ground that Carrington’s disability was caused not by a work-related
injury, but by his unrelated kidney problem.
The deputy commissioner awarded Carrington the requested benefits. Employer
requested review by the Full Commission, which reversed the deputy commissioner. The
Commission reasoned as follows:
Viewed broadly, the claimant’s ultimate disability was due to the
progression of a kidney disease which predated the accident. . . .
Though the kidney disease predated his accident, it was not
disabling and did not restrict the claimant’s ability to accept the
light duty work. What ultimately compelled the claimant’s
hospitalization and corresponding refusal of employment was
kidney failure, a condition that manifested after the accident. . . .
Considering the facts before us, we find the claimant’s
kidney failure to be a condition which arose since his accident and
is responsible for his disability. . . . Relevant to our conclusion is
the claimant’s two-plus decades of working for the employer with
kidney disease but without associated restrictions. We cannot
ignore that the condition did not prevent the claimant’s acceptance
of the light duty work. Only after many months of steady
employment in the light duty position did the disease progress to
the point that it compelled the claimant to discontinue his
employment.
We must also acknowledge the claimant’s concession that,
but for his kidney failure, he would have remained employed. . . .
When dealing with job refusals for unrelated conditions, we
are mindful of the wisdom of classifying as unjustified only those
which result from causes arising since the accident. But for this
qualification, an unprincipled employer could manufacture an
unjustified refusal by offering light duty work incompatible with
an employee’s pre-existing physical limitations. In such a
scenario, an injured employee would be placed in the untenable
position of either accepting work they were unable to perform or
risk[ing] the loss of disability benefits by refusing the job.
However, our holding in the present case does not implicate this
policy or invite employer misconduct as the claimant had no
pre-accident restrictions associated with his longstanding kidney
condition. His ultimate hospitalization and corresponding
unemployment was occasioned by an event, kidney failure, which
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did not exist when he was injured or when his light duty job was
offered.
(Footnote omitted). Carrington then noted this appeal.
II. ANALYSIS
Carrington assigns the following errors:
1. The Virginia Workers’ Compensation Commission erroneously
held that Mr. Carrington refused selective employment despite
being totally disabled in connection with polycystic kidney
disease that the employer knew pre-existed the work accident
and partially disabled in connection with work-related left arm
injuries.
2. The Virginia Workers’ Compensation Commission erroneously
rejected the parties’ stipulations that Mr. Carrington remains
totally disabled in conneciton [sic] with pre-existing polycystic
kidney disease.
(Capitalization altered).
“A claimant [before the Commission] must prove his case by a preponderance of the
evidence.” Pro-Football Inc. v. Paul, 39 Va. App. 1, 10, 569 S.E.2d 66, 71 (2002) (quoting
Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981)).
Furthermore, “decisions of the [C]ommission as to questions of
fact, if supported by credible evidence, are conclusive and binding
on this Court.” Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662,
672, 508 S.E.2d 335, 340 (1998). Evidence to the contrary in the
record “is of no consequence if there is credible evidence to
support the [C]ommission’s findings.” Russell Loungewear v.
Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). The
consideration and weight to be given to the evidence, including
medical evidence, are within the sound discretion of the
[C]ommission.
Id. at 10-11, 569 S.E.2d at 71. However, “conclusions of the Commission on questions of law,
or mixed questions of law and fact, are not binding on review.” McKellar v. Northrop Grumman
Shipbuilding, Inc., 290 Va. 349, 354, 777 S.E.2d 857, 860 (2015).
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A. Cause of Disability
Carrington argues that he was entitled to benefits because of a concept known as the “two
causes rule,” which “provides that a condition which has two causes, one related to a work
injury, and one not, is compensable and the treatment of that condition will be the responsibility
of the employer.” Haftsavar v. All Am. Carpet & Rugs, Inc., 59 Va. App. 593, 600, 721 S.E.2d
804, 808 (2012) (quoting Papco Oil v. Farr, 26 Va. App. 66, 75, 492 S.E.2d 858, 862 (1997)).
Although the two causes rule provides the general framework for analysis, the Supreme Court
recognized an exception to the rule in American Furniture Co. v. Doane, 230 Va. 39, 334 S.E.2d
548 (1985). In that case, the Commission had “ruled that an employee was justified in refusing
selective employment because of a physical impairment arising after and unrelated to the
industrial accident for which compensation had been awarded.” Id. at 41, 334 S.E.2d at 549.
The Supreme Court reversed, and held that “[a]n employer . . . is absolved of liability for
compensation if the employee refuses selective employment because of a physical condition
unrelated to the original industrial accident and arising since the accident.” Id. at 43, 334 S.E.2d
at 550. A contrasting factual scenario was presented in James v. Capitol Steel Construction Co.,
8 Va. App. 512, 382 S.E.2d 487 (1989). There, a panel of this Court observed that Doane did not
“compel[] the conclusion that employment suitable to the employee’s residual capacity does not
require consideration of a condition which pre-existed the injury by accident and which was
obvious to the employer when the employee was hired.” Id. at 516, 382 S.E.2d at 489.
Carrington notes that his polycystic kidney disease, while unrelated to his work injury,
pre-existed that injury. He also observes that Aquatic Company knew for decades that he
suffered from polycystic kidney disease. Thus, Carrington argues, the Doane exception to the
two causes rule does not apply. We disagree.
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Here, the Commission found that, while Carrington did suffer from a condition that
predated his employment with Aquatic Company, the ultimate reason Carrington was unable to
work was a progression and worsening of that condition. As the Commission observed,
“[t]hough the kidney disease predated his accident,” the condition that “ultimately compelled the
claimant’s hospitalization and corresponding refusal of employment was kidney failure, a
condition that manifested after the accident.” (Emphases added).
When a non-work-related disability prevents a partially disabled
employee from returning to his or her pre-injury work or from
accepting selective employment, for purposes of the [Workers’
Compensation] Act, the unrelated disability is not justification for
the employee to refuse or not to perform selective employment
. . . . Thus, the inability of a disabled employee to do selective
work . . . due to an unrelated disability is equivalent to an
unjustified refusal of selective employment.
Eppling v. Schultz Dining Programs, 18 Va. App. 125, 130, 442 S.E.2d 219, 222 (1994) (citation
omitted). We agree with the Commission that an award of the requested benefits under these
circumstances would risk “converting the Act into a form of health insurance or imposing
liability for a condition unrelated to the employee’s work.” As such, the Commission did not err
when it found that the two causes rule did not apply and when it declined to award Carrington
the requested benefits.
B. The Parties’ Stipulation
Carrington also argues that the Commission wrongly rejected the parties’ factual
stipulation that he had “been unable to work from October 2, 2014 and continuing due to
polycystic kidney disease, while at the same time partially disabled due to his work-related left
arm injury.” He asserts that the Commission’s factual findings directly contradicted that
stipulation, specifically its finding that Carrington’s “ultimate hospitalization and corresponding
unemployment was occasioned by an event, kidney failure, which did not exist when he was
injured or when his light duty job was offered.”
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Assuming that the Commission, as a factfinder, is not free to reject a stipulation of the
parties,2 we conclude that acceptance of the stipulation did not require the Commission to find in
Carrington’s favor.
Here, the Commission considered the stipulation that Carrington had “been unable to
work from October 2, 2014 and continuing due to polycystic kidney disease, while at the same
time partially disabled due to his work-related left arm injury.” However, the Commission
observed, “[t]hough the kidney disease predated his accident,” the condition that “ultimately
compelled the claimant’s hospitalization and corresponding refusal of employment was kidney
failure, a condition that manifested after the accident.” (Emphases added). This finding was not
contrary to the stipulation, rather it was a narrower, more specific finding than the general
conclusion contained in the stipulation. Even assuming, without deciding, that the Commission
was bound to accept the parties’ factual stipulation, it was not required to accept such a
stipulation in a vacuum, or to blinker itself against other related evidence. We find that it was
not a rejection of the parties’ stipulation when the Commission found, essentially, that
Carrington’s inability to work was due to polycystic kidney disease which resulted in kidney
failure, a distinct event and consequence which occurred after the work-related accident.
Carrington would have us read the stipulation to mean that employer agreed to the
compensability of the claim when it entered into the stipulation. Given that employer
consistently defended against the claim, it is clear that this was not employer’s intention. Like
the Commission, we read the stipulation as a piece of evidence to be weighed against all of the
2
Although “a party agreeing to a stipulation must be bound by it,” King William Cty. v.
Jones, 65 Va. App. 536, 548, 779 S.E.2d 213, 219 (2015) (en banc) (emphasis added), at oral
argument, Carrington conceded that he was unaware of any case stating that the Commission
was required to accept such a stipulation. Oral Argument Audio at 6:54-7:20 (Nov. 14, 2017).
However, we need not resolve that question, because we find that here, the Commission did not
reject the parties’ stipulation, but rather, considered it along with the other evidence.
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other evidence, no more dispositive in Carrington’s favor than Carrington’s testimony that, but
for his kidney failure, he would have remained employed, is dispositive in employer’s favor.
The Commission was required to consider both pieces of evidence (and all of the other evidence)
in making its determination. Because there is evidence to support the Commission’s factual
conclusion regarding the disability, that conclusion is binding on appeal. Paul, 39 Va. App. at
10-11, 569 S.E.2d at 71.
III. CONCLUSION
The Commission did not err when it found that the two causes rule did not apply, nor did
the Commission reject the stipulation of the parties as to the cause of Carrington’s inability to
work.
Affirmed.
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