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Recent Workers’ Compensation Opinions of Interest

Buracker v. Cam Repairs & Group Cam, JCN VA00000643071 (Aug. 17, 2014).
Commission reversed Deputy Commissioner's award of benefits to claimant who was terminated for reasons unrelated to his work injury, but rather as a result of poor job performance, acts for which the claimant was responsible. The Commission held that all that is required to establish a termination for cause and a forfeiture of subsequent compensation benefits is a showing (1) that the wage loss was properly attributable to the employee's wrongful act and (2) that the employee was responsible for the wrongful act. Thus, pursuant to the factual findings of the Deputy Commissioner, the claimant was unable to cure his constructive refusal of selective employment and permanently forfeited his right to subsequent compensation benefits when partially disabled. In reaching this conclusion, the Commission specifically found that the defendants did not have to prove that the claimant's wrongful act was willful or deliberate.



In Gomez v. Garcia Const., Inc., JCN No. 2346002 (Sept. 16, 2015), the full Commission dealt with the issue of what constitutes a claim for benefits.  On August 3, 2007, the claimant suffered compensable injuries to both wrists.  As a result of the accident, the claimant was awarded wage indemnity benefits for the period August 4, 2007 through February 24, 2008.  In November, 2009, defense counsel filed medical reports with the Commission reflecting that the claimant had suffered permanent partial disability to his upper extremities. 

On August 31, 2010, the claimant sent a letter to the Commission requesting authorization for left wrist fusion surgery.  Attached to the letter were medical records indicating that he had reached MMI. And that ratings would follow.  In the letter, the claimant stated to the Commission that “I really need your help, because [I] hurted both my wrists…sometimes [I] can’t move my arm and [I] am loosing [sic] the power of my left wrist.”  The defendants subsequently authorized the fusion surgery, and claimant’s counsel asked the Commission to dismiss the claim, which was done by Order dated February 14, 2011. 

On January 24, 2011, an Employer’s Application for Hearing was filed with the Commission.  In response to such application, the claimant wrote the Commission on January 25, 2011.  In the correspondence the claimant stated that “I still feel numbness and tingling in that hand.  I have not received a copy of the MMI or the IME to know what my rating of disability is.”  The Employer’s Application was subsequently withdrawn.

On July 14, 2014, the claimant, by counsel, filed a claim for benefits seeking permanent partial disability benefits.  The claim was defended on the grounds that such claim was not timely filed.  Although the claimant stipulated that he was last paid wage indemnity benefits pursuant to an award on February 24, 2008, he argued that his August 31, 2010 and January 24, 2011 letters constituted timely filed claims for permanent partial disability benefits.

The majority of the full Commission upheld the deputy’s finding that the letters were not claims for permanent partial disability benefits.  The Commission held that the August 31, 2010 letter sought surgery, and that there was no indication that the claimant was seeking permanent partial disability benefits. A majority of the Commission held that the January 25, 2011 letter was a response to the Employer’s Application, and an explanation as to why the claimant did not want his case closed.  It was noted that neither the claimant nor his counsel contemporaneously identified these letters as claims for permanent partial disability benefits, nor did the claimant specifically request such benefits.  The majority of the Commission held that, given the circumstances, the letters did not constitute claims for benefits.  Commissioner Marshall dissented in part, noting his belief that the January 25, 2011 letter met the requirements to be considered a claim for benefits.



In the full Commission opinion of  Hughes v. Tommy’s Warwick Restaurant, JCN No. VA00000887733, dated October 2, 2015, the claimant sought benefits resulting from a stab wound sustained during an altercation with his supervisor.  The claimant was working in the employer’s kitchen when he was confronted by his supervisor with a customer’s complaint that the eggs that the claimant had prepared were greasy.  An argument ensued, which escalated into a physical confrontation.  A co-worker witnessed the claimant lift his supervisor onto a steam table, after which the claimant was persuaded by the co-worker to leave the employer’s premises.  The claimant remained on the adjoining parking lot for approximately 5 minutes.  The supervisor exited the building with a knife and stabbed the claimant. The majority of the full Commission denied this claim, following the general rule that with injuries resulting from fights between co-workers, the injured worker must show that the fight was related to the employer’s business and that the claimant was not responsible for the fight.  The majority agreed with the Deputy Commissioner’s determination that the claimant was the aggressor.  Accordingly, it was held that the claimant removed himself from the course of his employment by assaulting his supervisor.  The majority of the full Commission also noted that the claimant failed to prove that his injury arose from a risk posed by the nature of his work, as doing so would require the Commission to conclude that the supervisor’s “murderous rage was fueled by lingering indignation over a customer’s runny eggs, rather than by an assault instigated by the claimant some minutes before.”  A dissenting opinion noted that the claimant was not the aggressor in the assault, as the claimant had abandoned the initial conflict when he left the kitchen, and that only five minutes elapsed before the supervisor came outside, chased the claimant in the parking lot, and stabbed him.  Accordingly, the dissenting Commissioner was of the opinion that the claimant sustained a compensable injury by accident which arose out of and in the course of his employment. 



In the full Commission decision of Etzler v. Fellowship Community Church, JCN No. VA00000981465, dated August 20, 2015, the claimant was seeking benefits for injuries sustained while rushing down steps.  The claimant testified at the hearing that in order to maintain the required student/teacher ratio, she needed to rush back to the classroom, and that this led to her missing a step and injuring her ankle.  In denying this claim, the full Commission’s reasoning included that they were not convinced that the minimal amount of time that rushing down the steps would have saved would have corrected a ratio imbalance, and the fact that the claimant was not rushing due to an emergency.  The full Commission noted that the need to hurry or rush was not shown to be a condition of the employment.  The full Commission stated the general rule that an injury that occurs while a claimant climbs or descends a staircase will not be compensable unless it is caused by an additional risk of employment, such as a defect in the structure, or a foreign substance on the steps.  Also, it was noted that  if the claimant’s work requires her to rush or to hurry, then this may constitute an additional risk which causes an injury to arise out of the employment.  In this case, the full Commission held that the claimant did not prove that her injury arose out of her employment, and the Deputy Commissioner’s denial of this claim was affirmed. 



In McKellar v. Northrop Grumman Shipbuilding, Inc., Record No.: 140999 (Oct. 29, 2015), the Supreme Court found that a retiree who was totally disabled was entitled to temporary total disability wage benefits.  The claimant worked for the employer for 42 years.  On or about April 1, 2010, the claimant notified the employer that he would be retiring effective May 1, 2010.  On April 15, 2010, the claimant suffered a work-related fall, resulting in injuries to his back, hip, knees, hands and wrists.  On May 1, 2010, the claimant retired as scheduled.  The claimant’s physician subsequently found that he was totally disabled, as a result of which the claimant filed a claim for temporary total disability wage benefits.

A majority of the full Commission found that the claimant was entitled to medical benefits but not wage indemnity benefits, as he had retired and taken himself out of the workforce.  The Court of Appeals affirmed the full Commission’s findings.  The Supreme Court, however, reversed.  The Court found that the clear language of Va. Code §65.2-500(A) entitled the claimant to wage indemnity benefits for periods of total incapacity, despite the fact that the claimant left the workforce through retirement.  The Court found that the claimant’s status in the labor market was irrelevant where the claimant was



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