VICTORIA L. LASSITER, Claimant Opinion by DIAMOND Commissioner v. VWC File No. 222-02-13


W. Mark Broadwell, Esquire 2201 West Queen Street Hampton, Virginia 23666 for the Claimant. (Copy sent Priority Mail) Gerald E. W. Voyer, Esquire P.O. Box 3490 Norfolk, Virginia 23514 for the Defendants. (Copy sent Priority Mail)

REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia. This case is before the Commission on the employer’s request for Review of the Deputy Commissioner's December 28, 2005, Opinion. The employer takes exception to the findings that the claimant injured her right knee as a result of her work accident; that she did not unjustifiably refuse selective employment; that she is entitled to temporary total disability benefits; and that she had no duty to market her residual capacity. We AFFIRM. On Review we will first address the claim for a right knee injury. The claimant, a forklift driver, filed two Claims for Benefits alleging that she sustained lower back, right knee, and ankle injuries on December 16, 2004. She testified that her accident occurred when she fell four to

VWC File No. 222-02-13 five feet out the back of a truck onto her right side, injuring her lower back, right knee, and right ankle. The employer agreed that the claimant sustained a compensable injury by accident on December 16, 2004, but denied the right knee. The employer’s branch manager, Kenneth Decker, testified that the claimant did not complain of knee problems. On the day of the accident, the claimant was treated at Obici Hospital for complaints of left hip/lower back and left ankle pain. The left ankle and back were x-rayed and the claimant was diagnosed with a back contusion and left ankle sprain. The claimant testified that she is aware the hospital records do not mention a knee injury, but she maintains she told the hospital providers about her knee, back, and a right ankle problem. The claimant testified that she also reported her knee injury to Dr. Nickolas Pezzella when she came under his care at the Spine Center on December 30, 2004. Although the New Patient Questionnaire does not list right leg problems, Dr. Pezzella’s office note reflects that the claimant complained of severe low back pain and a left ankle sprain as well as right knee pain that she related to her fall. Dr. Pezzella continued to treat the claimant for back pain radiating down the lower extremities. He ordered an MRI, EMG, and bone scan and diagnosed sciatica and bilateral sacroiliitis. On May 5, 2005, Dr. Pezzella also noted the claimant continued to complain of right knee pain and swelling. He stated that although the right knee pain “has been present since initially evaluated her” it had yet to be evaluated. Dr. Pezzella therefore referred the claimant to an orthopedist for treatment of her right knee pain. The claimant testified that the employer has denied continuing treatment for her knee. Dr. Pezzella’s June 20, 2005, note confirms the carrier denied the orthopedic referral on the basis of causation. Dr. Pezzella added “[h]owever, according to my initial evaluation when I saw the patient on December 30, 2004, she had complained of right knee pain which began after her fall


VWC File No. 222-02-13 at work; the same fall that resulted in her back injury.” subsequently issued another orthopedic referral. We also note the claimant was treated at Obici Hospital on January 22, 2005, following a motor vehicle accident. She was diagnosed with a closed head injury and a right eyelid He injected the right knee and

contusion as well as a mild neck muscle strain. When asked on cross-examination about the denial of knee pain reported at this visit, the claimant explained that while she was still experiencing knee pain at that time, the hospital personnel asked her what was wrong as a result of the car accident. The record further reveals that the claimant was interviewed by the carrier on January 10, 2005, and failed to identify a knee injury. After reviewing the testimony and the medical records, we find the Deputy Commissioner did not err in finding the right knee injury related to the work accident. We have considered the hospital records which contain no mention of a right knee injury; however, we have recognized that treating providers are more concerned with diagnosis and treatment than documenting details of the accident. See, e.g., Rempas v. Dynair CFE Servs., VWC File No. 169-07-37 (Feb. 16, 1995). Moreover, the Deputy Commissioner resolved the discrepancy in the claimant’s favor, and we see no reason to disturb his finding. See Virginia Real Estate Board v. Kline, 17 Va. App. 173, 435 S.E.2d 596 (1993); Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 363 S.E.2d 433 (1987). The claimant’s testimony regarding her right knee pain is corroborated by Dr. Pezzella’s notes beginning within two weeks of the accident, and in addressing causation Dr. Pezzella emphasized the fact that the claimant reported right knee pain at his initial evaluation. There is no contrary opinion. We next address whether the claimant unjustifiably refused selective employment. To establish this defense, the employer must prove: (1) a bona fide job offer suitable to the


VWC File No. 222-02-13 claimant’s capacity; (2) procured by the employer for the employee; and (3) the employee’s unjustified refusal to accept the job. Ellerson v. W.O. Grubbs Steel Erection Co., 1 Va. App. 97, 335 S.E.2d 379 (1985). The Deputy Commissioner rejected this defense on the ground that the employer failed to offer a light duty job to the claimant. On Review the employer concedes the claimant did not report work restrictions to her employer, but asserts it offered the claimant a position at Money Mailer in May 2005, and a position at Crown Cork and Seal beginning May 31, 2005, that were within light duty restrictions imposed by Dr. Pezzella. The claimant testified that the first place she returned to work after the accident was Money Mailer after she was released to work in April. The employer found her this job. The claimant testified that she worked one day and quit. She subsequently started working at a job offered by her employer at Crown Cork and Seal on June 3, 2005. The job was a forklift driver position, just like her pre-injury job, and it caused her lower back and knee difficulties. The

claimant testified that she was still under light duty restrictions when she stopped working at Crown Cork and Seal on or about August 12, 2005. She returned to Dr. Pezzella in August and he became upset that she had returned to full duty. Dr. Pezzella excused her from work in September. Her employer has not offered her any light duty since August 12th. Jodette M. Johnson, a placement specialist with the employer, testified that she placed the claimant in the job as a sorter at Money Mailer because the claimant inquired about available jobs. Johnson explained the sorter position entailed placing stacks of coupons into mail trays and lifting 15-30 pounds. She testified that the claimant was not under any work restrictions when this job was offered. The claimant worked only one day and reported that the job was not for her.


VWC File No. 222-02-13 Johnson testified that the claimant called for work again and was placed as a forklift operator at Crown Cork and Seal beginning May 31, 2005. On or about August 5, 2005, Johnson received a call from the client company reporting that the claimant had not appeared for work. Johnson spoke with the claimant who reported that she could not work due to an unrelated ailment. The company terminated the claimant’s employment. Johnson denied that the claimant reported problems with her back, leg, or knee after working at Money Mailer or Crown Cork and Seal. The claimant has not called looking for more work. Kenneth Decker, the employer’s branch manager, testified that the claimant did not indicate to him that she was under any restrictions at the time the Money Mailer and Crown Cork and Seal jobs were offered, and he never received any restrictions. However, prior to that, the claimant had reported she was on limited duty and was undergoing physical therapy. Decker explained to her that he did not have any jobs that would fit her schedule but advised her to contact him when she received full clearance. Decker testified that the claimant did not continue working at Money Mailer because she felt the job was too strenuous for one person. He testified that the claimant never reported that the job at Crown Cork and Seal exceeded any restrictions and she never asked for any assistance with the job. He does not recall the claimant complaining of right knee problems. Decker testified that the job at Crown Cork and Seal probably did not involve lifting the same amount of weight as required by her pre-injury position, but it did require the “repetition.” Upon our Review of the record, we conclude the evidence fails to establish that the positions at Money Mailer and Crown Cork and Seal constituted bona fide offers suitable to the claimant’s capacity. The testimony from the employer’s witnesses clearly shows that the

claimant was offered work without regard to any work restrictions. In fact, both witnesses


VWC File No. 222-02-13 testified that the claimant was not on any work restrictions at the time the jobs were offered. The claimant presented herself capable of full duty. We find no error in the Deputy Commissioner’s finding that the employer did not offer light duty to the claimant and accordingly the defense of refusal of light duty necessarily fails. Finally, we address the periods of temporary total disability awarded by the Deputy Commissioner - December 16, 2004, through May 5, 2005, and September 27, 2005, and continuing. The medical records reveal that the attending provider at the hospital released the claimant to modified work beginning December 17, 2004. However, when the claimant was seen by Dr. Pezzella on December 30, 2004, she was in severe pain and had not improved. Although Dr. Pezzella did not specifically address work capacity, at the next visit on January 14, 2005, he stated the claimant would “remain out of work” until reassessment. The next office notes record very little relief in the claimant’s pain but do not specifically address work capacity. On April 1, 2005, Dr. Pezzella recommended a short course of therapy and anticipated a gradual return to work. On May 5, 2005, Dr. Pezzella stated “I am going to return her to work with some restrictions.” On September 26, 2005, Dr. Pezzella reported that the claimant’s back and right knee pain continued, and on September 27, 2005, he signed a Return to Work Evaluation stating the claimant could perform no work at all and would not be released to work until orthopedic evaluation of her knee was approved. The employer argues on Review that the medical records do not support the award of disability benefits. We disagree. The claimant was released to modified duty at the hospital but within two weeks she presented to Dr. Pezzella in severe pain with no reported improvement. At the next visit he indicated the claimant should “remain” out of work. The notes sufficiently establish that Dr. Pezzella deemed the claimant incapable of working beginning with his first


VWC File No. 222-02-13 visit. The prior two-week period is too short to require evidence of marketing. It is further established that the claimant was released to work with restrictions on May 5, 2005, but again excused from work on September 27, 2005. Dr. Pezzella’s September 26, 2005, office note documents the claimant’s continuing pain and the need for evaluation and treatment of her knee injury. We find it reasonable that he excused the claimant from work given her continuing complaints and need for treatment. We conclude the medical evidence sufficiently supports the award. For the reasons stated, the Opinion below is AFFIRMED in its entirety. This matter is hereby removed from the Review docket.

APPEAL This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.


Victoria Lee Lassiter P.O. Box 355 Sunbury, NC 27979 Reliance Staffing Serv. 424 Market St. #100 Suffolk, VA 23434 Travelers Property Casualty Co. of Amer. P.O. Box 85554 Richmond, VA 23285


To top