IN THE WORKERS’ COMPENSATION COMMISSION
MARK WAYNE BARTLETT, Claimant
Opinion by DUDLEY
v. VWC File No. 224-14-37
PETROLEUM TRANSPORTATION COMPANY, INC., Employer
LIBERTY MUTUAL INSURANCE COMPANY, Insurer
Ginger J. Largen, Esquire
Morefield and Largen, P.L.C.
P.O. Box 1327
Abingdon, VA 24212-1327
for the Claimant.
Brian J. Rife, Esquire
Penn, Stuart and Eskridge
P.O. Box 2009
Bristol, VA 24203-2009
for the Defendants.
REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and
Commissioner Dudley at Richmond, Virginia.
The employer requests Review of the Deputy Commissioner’s January 10, 2006, Opinion
awarding temporary total disability benefits and medical benefits. It assigns multiple errors and
asserts on appeal that the claimant did not sustain a compensable injury by accident or give
adequate notice of the injury.1 We disagree, and affirm the Deputy Commissioner’s Opinion.
The Deputy Commissioner accurately summarized the evidence in this case, and we will
repeat it only to the extent necessary in this Opinion. The claimant, a tractor-trailer driver, filed
The employer excepted to other findings in the Deputy Commissioner’s Opinion, which it did
not discuss in its written statement. We deem these assignments of error to be waived and abandoned,
and we will not address them here. See Gruner v. Northern Neck Transfer, Inc., VWC File No. 159-79-14
(May 17, 1994); Rule 3.2 of the Rules of the Virginia Worker’s Compensation Commission.
VWC File No. 224-14-37
a claim on July 5, 2005, alleging injury to his right shoulder in a work-related accident on
April 7, 2005. He sought temporary total disability benefits and medical benefits. The employer
defended the claim on the grounds that the claimant did not sustain an injury by accident arising
out of and in the course of his employment pursuant to Virginia Code § 65.2-101, and that he
failed to provide notice of the accident within 30 days pursuant to Code § 65.2-600.
The claimant testified that on the day of the accident, he unloaded gasoline into the
pumps at a Sam’s Club Store in Bluefield, Virginia. He completed the delivery, used his cell
phone to call his dispatcher, “Scott”2, to obtain his next assignment, and called his wife to tell her
when he would be home. The claimant stated that: “I took up all the hoses and put everything
back on the truck and went to get in the truck, and when I went to pull myself up is when it
popped, my shoulder popped.” (Tr. at 10).
The claimant said that he called Scott to tell him that he was injured, that he was going to
the emergency room, and that he would be unable to go to his next assignment. The claimant
said that Scott told him to get medical treatment, to call dispatch again the next morning, and to
inform Jones about the situation. He called his wife and asked her to meet him at the emergency
room. The claimant testified that he went to Wythe County Community Hospital, but did not
receive treatment, because the staff was too busy that night. Medical records confirm that he was
seen by a triage nurse at 11:25 p.m. and that he reported pulling something in his right arm. The
Robert Jones, terminal manager, testified that there was another dispatcher working in
April 2005, named Scott Avatt, who no longer worked for the employer. The claimant did not know the
last name of the person he talked to on April 7, 2005. Scott Johnston, who was night dispatcher at the
time of the injury, testified that he was working that day and had no recollection of the phone call. Avatt
did not testify.
VWC File No. 224-14-37
notes further reflect that when the nurse called for the claimant at 2:25 a.m., he had left the
At the Hearing, the claimant submitted a cell phone bill that substantiated the two calls to
dispatch and the two calls to his wife. All four calls were placed between 9:20 and 9:43 p.m.
The claimant returned to the emergency room on April 10, 2005, because his shoulder
pain had not resolved. The treatment notes state that he hurt himself “while pulling self up into a
truck (tractor) something snapped in elbow.” The claimant was diagnosed as having right elbow
biceps tendon injury/sprain, and taken out of work on April 10 and April 11, 2005. The
emergency room directed him to follow up with an orthopedic surgeon. The claimant testified
that he contacted dispatch, spoke with Teresa Roberts, and informed Roberts of his work status.
On April 11, 2005, he sought treatment from Dr. Paul C. Liebrecht, orthopedic surgeon.
Dr. Liebrecht’s office note of April 11, 2005, reflects that the claimant stated: “[T]wo weeks
ago, (he is a truck driver) he was lifting himself up into the oil tanker rig and felt a pull or snap
into his right arm and this caused a great deal of pain.” Dr. Liebrecht diagnosed: “[R]ight
shoulder strain, right elbow strain, maybe biceps strain or some biceps tendonitis, possible early
carpal tunnel syndrome.” Dr. Liebrecht directed the claimant to stay off work for one and one-
half weeks, until his next visit. The claimant said that he gave Dr. Liebrecht’s office staff Jones’
fax number from a business card that he had, and watched them fax a work slip to him. The
work slip documenting the claimant’s work status has Jones’ fax number written on the top, and
the notation “Attn: Bob Jones.”
VWC File No. 224-14-37
Johnston testified that he worked in dispatch on April 7, 2005, from 6 p.m. to 6 a.m. He
did not recall the claimant reporting an injury or notifying him that he could not complete his
shift. Johnston stated that he learned about the injury in October 2005. He stated that it was
procedure to instruct a driver reporting an injury to contact his terminal manager. Johnston also
stated that he received many calls and e-mails during his shift, and that a call would not go
unanswered or be answered by a machine.
Roberts testified that she worked in dispatch from April 10 through April 13, 2005. She
had no recollection of the claimant reporting his work status on April 11, 2005. Roberts also
stated that she learned of the injury in October 2005. She confirmed that a driver reporting an
injury would be instructed to call the terminal manager. Roberts said that she would follow up
with the terminal manager about injuries sustained by drivers.
Jones testified that he had no recollection of the claimant reporting an injury to him, or
dispatch reporting an injured driver to him on April 7, 2005. He stated that he instructed each
driver to inform him of any injury. Jones said that he learned of the alleged accident and injury
on May 26, 2005, when human resources contacted him about the claimant’s termination from
employment. Jones told human resources that the claimant had not contacted him since
April 7, 2005.
Jones denied receiving any facsimiles from Dr. Liebrecht, but acknowledged that his fax
number had changed and that the claimant had the old number. He said that only his fax number
had changed, and that his office number and pager number were still the same. Jones confirmed
VWC File No. 224-14-37
that the claimant’s cell phone records from the date of the injury contained a number for one of
the employer’s call centers.
The claimant’s wife testified that she met her husband at the emergency room on
April 7, 2005, and overheard him call a dispatcher on April 10, 2005, and report that: “[H]e had
got hurt when he pulled himself up.” (Tr. at 88).
In response to questions from claimant’s counsel dated November 29, 2005,
Dr. Liebrecht stated that the claimant’s condition was causally related to the accident that
occurred on April 7, 2005, and that he was unable to work from April 11 to September 9, 2005,
after which he was released to regular duty with no restrictions. The doctor also confirmed that
off-duty work slips were faxed to Jones on April 11, April 27, May 25, and October 6, 2005.
The Deputy Commissioner found that the claimant sustained an injury by accident arising
out of and in the course of his employment on April 7, 2005, and that he reported the accident to
his employer in a timely manner. She found that the medical evidence and cell phone records
corroborated his testimony and that he met his burden of proof.
In finding that the claimant reported his claim to his employer in a timely manner, as
required by § 65.2-600, the Deputy Commissioner made certain credibility determinations:
We find that the evidence corroborates the credible testimony of
the claimant, and that through certain errors and omissions of the
employer, it is possible that the claimant gave notice which was
not received by persons responsible for processing that information
with the employer’s organization. (Op. at 10)
VWC File No. 224-14-37
The Deputy Commissioner specifically held that: (1) the claimant made phone calls to dispatch
on April 7 and April 10, 2005; (2) he believed that written notice was given on April 11, 2005,
through faxes sent by his physician; (3) although the employer may not have received the written
notice on April 11, 2005, it was because the new fax number was not given to the claimant; and
(4) the employer was not prejudiced.
On Review, we agree with the findings of the Deputy Commissioner.
When the deputy commissioner's finding of credibility is based, in
whole or in part, upon the claimant's appearance and demeanor at
the hearing, the commission may have difficulty reversing that
finding without recalling the witness. On the other hand, if the
deputy commissioner's determination of credibility is based on the
substance of the testimony and not upon the witness' demeanor and
appearance, such a finding is as determinable by the full
commission as by the deputy. Only when the deputy's finding as
to credibility is specifically based upon the witness' appearance
and demeanor do we believe that a due process question may be
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987). Here,
the substance of the testimony presented supports the Deputy Commissioner’s finding. While
there were inconsistencies in the medical reports about the duration of the condition and the
description of the accident, these inconsistencies were not so great as to indicate anything more
than a misinterpretation or misstatement of the claimant’s reports. The employer presented
three witnesses who stated that they had not received any report of the injury; however,
one witness may not have been the “Scott” that the claimant talked to, and one witness agreed
that his fax number had changed and that the claimant was not informed of the change. Each
VWC File No. 224-14-37
dispatcher testified that they received a high number of phone calls each shift from drivers and
would have instructed the driver to contact Jones to report the injury, rather than take any direct
action themselves. The claimant presented corroborating medical reports, accurately dated, and
in general, reciting the same sequence of events that he described in his deposition and
testimony. He also presented testimony from his wife and cell phone bills that further
corroborated his deposition and testimony.
For the reasons stated, the Opinion below is AFFIRMED.
Interest is payable on the award pursuant to Virginia Code § 65.2-707.
The attorney’s fee to be deducted from accrued compensation and paid to Morefield and
Largen, P.L.C., for legal services rendered, is hereby increased to a total of $1,750.
The matter is hereby removed from the Review docket.
This Opinion shall be final unless appealed to the Virginia Court of Appeals within
30 days of receipt.
cc: Mr. Mark Wayne Barlett
1066 Loafers Rest Road
Austinville, VA 24312
Petroleum Transportation Company, Inc.
438 Old Highway, # 52
Pilot Mountain, NC 27041
Liberty Mutual Insurance Company
P.O. Box 85059
Richmond, VA 23261