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					VIRGINIA:                                                                                12/01/2004
IN THE WORKERS' COMPENSATION COMMISSION


DARRYL ROBERT WOLF, Claimant
                                                                                     Opinion by the
                                                                                      Commission
v.             VWC File No. 215-00-52


LADY OLIVIA AT NORTH CLIFF, LLC, Employer
COMPANION PROPERTY & CASUALTY INSURANCE CO., Insurer

Darryl Robert Wolf
16296 Placid Pines Drive
Orange, VA 22960
Claimant Pro Se
(Copy sent Priority Mail)

Patricia C. Arrighi, Esquire
Taylor & Walker, P.C.
6802 Paragon Place, Suite 126
Richmond, VA 23230
For the Defendants
(Copy sent Priority Mail)


     REVIEW on the record before Commissioner Tarr, Commissioner Diamond, and
Commissioner Dudley at Richmond, Virginia.

       This case is before the Commission at the request of the claimant for Review of the decision

of the Deputy Commissioner finding that the claimant failed to prove he suffered an injury by

accident arising out of and in the course of his employment and resulting in his disability. We

AFFIRM.

       The claimant, age 39, filed a claim for benefits on July 8, 2003, alleging that he suffered an

injury by accident to his back, neck and shoulders while working for the employer on June 19,

2003. The claimant sought medical benefits and temporary total disability compensation from July

11, 2003, and continuing.
                                                                               VWC File No. 215-00-52

            The evidence is summarized here only to the extent necessary to address the issue

considered on Review.

            The claimant testified that he started working at the employer’s farm in the beginning of

June of 2003, and that he was hired to work with the employer’s thoroughbred horses. He testified

that he was injured on June 19, 2003, when he was leading a yearling around by a rope and while he

was riding a pony. According to the claimant, the yearling jerked the rope out of his hand and

caused the pony to fall to the left. He testified that he fell onto his back and the pony landed on his

left leg.

            The claimant testified that he felt pain in his back, neck, shoulders and left knee following

the accident involving the pony. He indicated that he did not initially claim an injury because he

had only recently started the job at the farm and did not want to cause any problem. However, he

testified that he eventually sought medical treatment at Culpeper Hospital for his workplace injuries.

            The claimant testified that he was subsequently referred to Dr. Charles Riegel at Virginia

Orthopedic Group for additional treatment related to his workplace injuries. He indicated that

Dr. Reigel advised him not to work at the time of his first examination but that he attempted to

continue working until Dr. Reigel stated that he “absolutely” should not work. The claimant also

indicated that he sought treatment for his workplace injuries at several emergency rooms in Florida

and Georgia.

            During cross-examination, the claimant denied ever telling anyone at the employer’s farm

that he did not want an MRI because he was “fine.” He later explained that he told someone at the

farm he wanted to give his injury “some time” before undergoing an MRI.

            The claimant acknowledged that he was reprimanded by the employer for driving farm

equipment too fast and that he was told not to bring his dog with him to work after bringing the dog




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on one occasion.    He also agreed that he was angry with the employer’s farm administrator for

failing to pay his daughter for taking care of dogs and pulling weeds on the farm.

       The claimant testified that he received notice of his termination by letter but that he could

not remember the method by which he actually received the letter notifying him of his termination.

He indicated that he did not recall anyone telling him verbally that he was being fired.

       Terri Smith, the employer’s former farm administrator, testified that she is married to

Wayne Smith, the employer’s former general manager. Ms. Smith testified that she first became

aware the claimant was claiming a workplace injury on June 26, 2003, when he had gone to the

doctor and received a note stating that he should remain off of work through June 28, 2003. She

indicated that the claimant told her he needed to be off of work because of a right shoulder sprain.

       Ms. Smith testified that she observed the claimant on the days that he was off of work

following their conversation on June 26, 2003. According to Ms. Smith, she observed the claimant

mowing his yard. She testified further that she spoke to the claimant about mowing his lawn given

the doctor’s instruction that he “should be taking it easy,” and the claimant advised her his shoulder

“felt fine.” She also indicated that she observed the claimant mucking some stalls when he was

supposed to be off of work.

       Ms. Smith testified that she had numerous conversations with the claimant after June 26,

2003, about his shoulder. She indicated that the claimant mentioned his doctor wanting to order an

MRI and that he stated he did not think an MRI was necessary because he was “doing fine.”

       Ms. Smith also described certain problems that the claimant caused during the course of his

employment at the employer’s farm. She indicated that he was “belligerent” with the farm’s owner.

In addition, she indicated that a dispute developed between the claimant and the farm’s owner

regarding the efforts of the claimant’s daughters in taking care of some puppies that the employer’s




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farm was fostering. She testified further that the claimant was reprimanded on several occasions for

driving the employer’s lawn mowers too fast and that he was cautioned regarding his use of a

telephone in one of the employer’s houses, where the claimant was residing, without putting the

telephone into his name.

        Ms. Smith testified that the decision was made to terminate the claimant on the afternoon of

July 10, 2003, because of the claimant’s practice of ignoring “reprimands” and “break[ing] the

rules.” She also indicated that he was terminated for refusing to perform tasks that he did not want

to perform and for his belligerent attitude in his dealings with the farm’s owner.

        According to Ms. Smith, the claimant was not actually terminated until July 31, 2003—

because he did not actually work for the employer after July 10, 2003. Ms. Smith testified she

personally told the claimant he was being terminated when he was in the employer’s office on July

31, 2003. She testified further that she tried to give the claimant and his wife a letter memorializing

the termination but that they refused to accept the letter before leaving the employer’s office.

        The transcript of the deposition of Lloyd Wayne Smith, taken on December 18, 2003, was

also submitted as evidence. Mr. Smith explained that he worked as the employer’s farm manager in

June of 2003 and that he was familiar with the claimant.

        It was Mr. Smith’s understanding that the claimant fell off of a pony when “ponying”

another horse in the riding arena on June 19, 2003. He explained that the horse the claimant was

working with on that date had a habit of stopping while being walked around the arena, causing the

leading rope to come out of the hand of the person who was leading the horse. Mr. Smith testified

that he did not actually witness the claimant suffering any accident on June 19, 2003, but that he

heard a “commotion,” turned around and observed the claimant standing in the arena after

previously being on the pony. He believed the claimant had fallen off of the pony and asked the




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claimant if he was “all right.” According to Mr. Smith, the claimant told him he was not hurt and

that his saddle had broken. Mr. Smith testified further that the pony was standing in the arena at the

time that he observed the claimant. He also indicated that he turned around and saw the claimant

within “a couple of seconds” of hearing the commotion.

        Mr. Smith recalled that he observed the claimant working around the farm throughout the

day after the incident involving the pony and yearling. He testified further that he did not become

aware the claimant was claiming a work-related injury until several days later when his wife called

him and told him the claimant had been to the emergency room and that a lawyer had also called the

farm about the claimant. Mr. Smith did not recall the claimant working for him again after the

claimant claimed an injury.

        Mr. Smith testified that he was involved “[t]o some degree” in the decision to terminate the

claimant. It was Mr. Smith’s understanding that the claimant was terminated because of his

tendency to go too fast on the farm equipment, his action of riding on one of the farm’s tractors with

his dog, making some racial slurs and “just [doing] things that should not have been done.” During

cross-examination, Ms. Smith also acknowledged that he was “sure” the claimant’s fall had “some

bearing” on the decision to terminate the claimant.

        Mr. Smith did not remember who made the final decision to terminate the claimant. He also

indicated that he was in the employer’s office when his wife told the claimant he was being

terminated.

        The medical evidence reflects that the claimant was examined in the emergency room of

Culpeper Regional Hospital on June 24, 2003, at which time the claimant complained of a migraine

headache and indicated that he had last experienced a migraine seven months earlier. The claimant

also reported that he had suffered an injury to his left shoulder three days earlier when he fell off of




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a pony.   The claimant was given medication and instructed to “follow-up” with a doctor if

necessary. The emergency room record also shows that the claimant declined a shoulder x-ray.

       The claimant returned to the emergency room of Culpeper Regional Hospital on June 26,

2003, at which time he complained of pain is right arm and neck following an incident when he was

“jerked” when “ponying” a yearling earlier in the week. He also complained of “tingling hands.”

An x-ray of the claimant’s cervical spine was taken because of the claimant’s “Right-sided neck

pain” and interpreted by the radiologist as normal. The claimant was given additional medication

and to instructed to wear a cervical collar “for comfort.” He was also instructed not to work for two

days and to call for a “follow-up appt with VOC.”

       On June 27, 2003, the claimant was again examined in the emergency room of Culpeper

Regional Hospital at which time he complained of pain in his right shoulder that had grown

“worse.” The examining physician questioned whether the claimant may suffer from disc disease

and indicated that the claimant would be “set up for MRI by VOC.”

       Dr. Craig Reigel at Virginia Orthopedic Center also examined the claimant on June 26,

2003, at which time Dr. Reigel reported that the claimant had injured his right shoulder

approximately a week earlier in a riding accident. The claimant denied any prior shoulder problems

and also complained of neck pain and tingling in his hands. Dr. Reigel noted that the claimant’s

cervical and right shoulder x-rays were normal. However, he also indicated that he was sending the

claimant for a cervical MRI to “rule out cervical pathology.” In addition, the record contains a

disability slip dated June 27, 2003, whereupon Dr. Reigel indicated that the claimant should remain

off of work until July 14, 2003.

       The claimant returned to the emergency room on July 10, 2003, complaining of cervical

pain with radiation and chest pain. It was also noted that the claimant had “missed” his MRI.




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                                                                           VWC File No. 215-00-52

       The claimant also returned to Dr. Reigel on July 11, 2003, at which time he told Dr. Reigel

he had not undergone the MRI because he did not want to miss work and because he was severely

claustrophobic. Dr. Reigel indicated that he wanted the claimant to remain off of work until after he

had undergone the MRI and that he was going to obtain an anesthesia consultation to assist with the

MRI.

       On July 14, 2003, the claimant was examined at the emergency room of the University of

Virginia Health System, at which time he complained of back pain following a “inj 6/19.” The

claimant also complained of numbness in his right lateral forearm, pain in both shoulders and neck

pain and reported that he had been pushed from a horse and landed on his left shoulder. The

claimant was given Percocet, Valium and Demerol and instructed to seek follow-up care from his

orthopedist.

       The claimant saw Dr. Reigel on several more occasions in July and August of 2003. On

July 15, 2003, Dr. Reigel indicated that the claimant’s cervical MRI was not rescheduled until late

August and that he “would leave [the claimant] out of work until the MRI.” Dr. Reigel also noted

that the claimant “appear[ed] to be in genuine pain” and did not believe the claimant was “seeking

drugs or had secondary gain for being out of work.” The claimant was prescribed pain medication,

including Oxycontin, during this period together with Valium. In addition, Dr. Reigel prescribed

physical therapy.

       On August 1, 2003, Dr. Reigel noted that the claimant had a “problem” with his employer

and that the employer was refusing to pay the claimant’s medical bills. He also noted that the

claimant had been evaluated at a pain clinic and received a “scalene block” which gave him

temporary relief. Dr. Reigel reported further the claimant was moving to Florida and recommended




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                                                                           VWC File No. 215-00-52

that the claimant continue with his physical therapy when in Florida. In addition, Dr. Reigel gave

the claimant a prescription for additional pain medication.

       The record reflects that the claimant was examined in the emergency rooms of several

hospitals in September and October of 2003, after leaving Virginia—including Baptist Medical

Center in Jacksonville, Florida; St. Vincent’s in Jacksonville, Florida; Meadows Regional Medical

Center in Vidalia, Georgia; Southeast Georgia Regional Medical Center in Brunswick, Georgia; and

Shands in Jacksonville, Florida. The claimant continued to complain of neck, back and shoulder

pain when examined at these institutions and sought refills of his pain medication, including

Percocet.   In addition, the record includes a letter from the office manager of Jacksonville

Orthopedic Institute reflecting that the claimant attempted to schedule an appointment with one of

the orthopedists in that practice but that he was not given an appointment because it was not

scheduled by a workers’ compensation adjuster or nurse case manager.

       Upon essentially this evidence, the Deputy Commissioner found that the claimant failed to

sustain his burden of proving that he suffered an actual injury in a workplace accident on June 19,

2003. In reaching this conclusion, the Deputy Commissioner specifically found that the claimant’s

testimony describing the events which supposedly occurred on June 19, 2003, and his resulting

symptoms and injuries was not credible.         In particular, he observed that the claimant was

“hypersensitive” and “prone to exaggeration.”

       In Goodyear Tire & Rubber Co v Pierce, 5 Va. App. 374, 363 S.E.2d. 433 (1987), the Court

analogized the relationship between the Commission's and the Deputy Commissioner's factual

determinations with that of a Commissioner in Chancery. Thus, unless we find that the Deputy

Commissioner's determination regarding the claimant’s credibility is plainly in error, based upon the




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record at the hearing, we are reluctant to reverse the Deputy Commissioner's factual findings. See

also VA Real Estate Board v Kline, 17 Va. App. 173, 435 S.E.2d. 596 (1993).

        In the instant case, the evidence predominates in establishing that the claimant did fall from

a horse on June 19, 2003. Although Mr. Smith did not actually witness the claimant’s fall, he did

hear a “commotion,” prompting him to turn around and see the claimant, who had been riding a

pony while leading another horse, standing in the riding arena. Therefore, Mr. Smith’s testimony

supports the claimant’s assertion that he was involved in some form of work-related accident on

June 19, 2003.

        However, Mr. Smith’s testimony does not support the claimant contention that the pony

actually landed on the claimant during the course of the accident. Instead, Mr. Smith testified that

he saw both the claimant and the pony standing immediately after the accident. Mr. Smith also

indicated that the claimant denied suffering any injury in the course of the fall.

        In addition, although the record reflects that the claimant sought medical treatment for

injuries that he asserted were related to his fall within a week of the incident involving the pony, the

x-rays that have been taken of the claimant since the time of his fall have not revealed any

abnormalities.     Furthermore, the evidence shows that the claimant continued to work at the

employer’s farm during the days immediately following his accident despite his assertions of pain.

        We defer to the Deputy Commissioner’s credibility finding.

        For these reasons, the July 26, 2004, Opinion of the Deputy Commissioner is AFFIRMED.

        This matter is hereby removed from the Review docket.

                                               APPEAL

        This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty

days of receipt.




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                                               VWC File No. 215-00-52

c:   Lady Olivia at North Cliff, LLC
     9198 N. Cliff Lane
     Rixeyville, VA 22737

     Companion Property & Casualty Ins. Co.
     P. O. Box 100165
     Columbia, SC 29202




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