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					VIRGINIA:                                                                            09/01/2009
IN THE WORKERS‟ COMPENSATION COMMISSION


FRANK KARBAN, Claimant
                                                                           Opinion by WILLIAMS
                                                                                    Commissioner
v.                     VWC File No. 236-54-55


UNIVERSAL FIBER SYSTEMS, LLC, Employer
PENNSYLVANIA MANUFACTURERS ASSOCIATION
 INSURANCE COMPANY, Insurer


Bryan G. Bosta, Esquire
For the Claimant.
(Priority Mail)

Sean M. O‟Connor, Esquire
For the Defendants.
(Priority Mail)


     REVIEW on the record by Commissioner Diamond, Commissioner Dudley and
Commissioner Williams at Richmond, Virginia.


       This case is before the Commission on the employer‟s request for Review of the Deputy

Commissioner‟s January 9, 2009 Opinion. The Deputy Commissioner found that the claimant

suffered a compensable injury by accident, that he gave sufficient notice under Virginia Code

Section 600 and that the claimant adequately marketed his residual capacity effective

December 29, 2008. We REVERSE.

       The claimant filed a claim on June 18, 2008 alleging that he injured his back when returning

breakdown equipment to storage on February 24, 2007. The claimant requested lifetime medical

benefits and temporary total disability benefits beginning June 9, 2008 until he was released back to

work by a physician. At the hearing held on January 6, 2009, it was clarified that the claimant
                                                                        VWC File No. 236-54-55


was seeking temporary total disability benefits beginning June 13, 2008 to the present and

continuing.

        The employer defended the claim on the grounds that there was no injury by accident

arising out of the claimant‟s employment and that the claimant failed to give timely notice.

        The medical record reveals that the claimant sought medical treatment with Dr. Jeffrey P.

Ginther, family physician, on January 15, 2007, over one month before the alleged accident. The

majority of Dr. Ginther‟s handwritten notes are not legible; however, it appears that the claimant

complained of pain in his lower back and right groin. The note indicates that, approximately one

month previously, the claimant hurt his back when he twisted and then felt a pop in his right low

back.

        Medical records not designated by either party show that the claimant treated with

Dr. Ginther on July 6, 2007 for a groin sprain and underwent x-rays and an MRI on July 16, 2007.

Like the January 15, 2007 note, the handwritten notes from Dr. Ginther in the July 6, 2007 medical

note are very difficult to read. We were able to discern that the claimant was suffering from

radicular pain.

        The MRI of the claimant‟s lumbar spine and right hip showed degenerative disc disease

which was most significant at L3-L4 and L4-L5. No significant abnormality of the right hip was

shown. X-rays of the claimant‟s lumbar spine and right hip showed some degenerative change

bilaterally with some disc space narrowing at the L5-S1 level. The results were negative for any

acute abnormalities.

        The claimant did not treat with Dr. Ginther again until June 13, 2008. The claimant

complained of back pain and groin pain resulting from a continuation of an injury. The note



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indicates that the claimant could perform his job except for the lifting that was required. Dr. Ginther

took the claimant out of work until July 3, 2008.

       Dr. Ginther treated the claimant on July 3, 2008. The claimant complained of back pain.

Dr. Ginther prescribed medication.

       On July 21, 2008, Dr. Ginther wrote a letter to the insurer regarding the claimant.

Dr. Ginther indicated:

       Mr. Karban was in our office on July 3. Mr. Karban told us on January 15, 2007 that
       he had hurt his back approximately one month prior and that he had pain in his right
       groin. It wasn‟t until July 3 that he made it clear that this was a work related
       injury. . . . An MRI of his lumbar spine in July 2007 does show some abnormalities
       that could relate to his pain. I have recommended that he see a neurosurgeon or a
       spine specialist. In the meantime I did give him an anti-inflammatory for pain relief.

       On August 28, 2008, Dr. Ginther completed and signed an “Attending Physician‟s

Statement of Disability.” He indicated that the claimant suffered a work-related injury by accident.

His diagnosis was lumbar disc degenerative injury at the L3-L4 level with radicular pain. He noted

that the claimant first treated for this condition in July of 2007 and that the onset of this condition

was late June of 2007. Dr. Ginther further indicated that the claimant was only able to perform light

duty work with an accompanying restriction that limited his lifting to under 20 pounds.

       The claimant first treated with Dr. Morgan Lorio on September 15, 2008. The claimant

reported that he had suffered a work-related injury on February 24, 2007.

       He states that he was returning a die breakdown and was picking up an air hose that
       weighs approximately 10 pounds, turned and felt a pop in the right side of his low
       back. He denies any problems with his spine before this time. He had never seen a
       doctor for his back pain. Thus his back pain has been sudden onset since that time
       associated with occasional numbness and tingling.




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The claimant complained that his right leg pain was more severe than his back pain but that at times,

his back pain was worse. He reported that his pain was aggravated by sitting. Dr. Lorio indicated

that x-rays taken at Bristol Regional Medical Center on July 16, 2007 revealed five non-ribbearing

lumbar like vertebrae, disc height that was maintained at all levels except at the L5-S1 level which

may have had a retrolisthesis and degenerative disc disease at the L5-S1 level. Dr. Lorio indicated

that an MRI completed on July 16, 2007 showed end plate reactive changes at the L5-S1 level, mild

end plate reactive changes at the L4-L5 level, narrowed disc space at the L5-S1 level, bilateral

neuroforaminal narrowing at the L4-L5 level and a right-sided disc bulge at the L3-L4 level

contributing to neuroforaminal narrowing. Dr. Lorio diagnosed the claimant with lumbago with

radiculopathy and lumbar degenerative disc disease. Dr. Lorio noted that the claimant‟s life was

“not significantly affected by this although he has been off work because heavy lifting aggravates

his back.” Dr. Lorio further noted, “His workman‟s comp is in dispute because after the injury he

did not see a doctor until about five months later. This by definition is a work comp compensable

injury as it did occur at work and he had no symptoms prior to this.” Dr. Lorio opined that the

claimant‟s disc disease was mild in nature. Dr. Lorio suggested that facet disease was indicated.

       The claimant returned to Dr. Lorio on October 20, 2008 after a CT and a myelogram were

completed. Dr. Lorio noted that the claimant had back pain and leg pain alternating to either side.

The pain was reportedly greater in the claimant‟s right side than his left side. Upon physical

examination, Dr. Lorio noted that the claimant had no tension signs but that he has “medial right

thigh referred pain in a right S1 sclerotomal distribution.” Dr. Lorio indicated that the claimant‟s

CT/myelogram revealed a “smaller, if not narrowed, right S1 exiting nerve root with an asymmetric

centralized disc bulge/herniation at 5-1.”



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                                                                             VWC File No. 236-54-55


        After a nerve root block was performed by Dr. Aguirre, the claimant treated with

Dr. Lorio‟s physician‟s assistant, Kimberly Butterworth, on November 20, 2008. The claimant

reported that his pain was alleviated by the nerve root block for approximately two to three days;

however, the claimant noted that the block was performed at the L4 level instead of the S1 level.

Ms. Butterworth indicated that another nerve root block at the S1 level would be scheduled with

Dr. Aguirre. The record contains a medical note from November 20, 2008 that placed the claimant

out of work “until further notice.”

        On December 15, 2008, the claimant treated with Dr. Lorio after his right selective S1 nerve

block. The medical note indicates that the claimant was suffering from degenerative disc disease at

the L5-S1 level with an acute angle, 45 degrees, to the sacrum. The claimant reported that his pain

was alleviated significantly with the last nerve block performed by Dr. Aguirre. The claimant

further reported that he wished to return to work but that lifting over 30 to 40 pounds would

re-aggravate his injury or re-injure him. Dr. Lorio gave the claimant a release to work with a

20-pound lifting restriction.

        A telephone deposition of the claimant was taken on December 4, 2008. The claimant

testified that, on February 24, 2007, he was changing one dye pack and replacing it with another in

his machine at work. He testified that, “while they‟re still warm before they cool down, you break

them down with an air hose and air gun and dismantle them.” (Dep. at 14). He testified that, as he

was returning the air hose that ran an aromatic gun to the slot in a tray, he twisted and then felt a pop

in his lower back when he put the air hose in the slot.

        He testified that he had “no idea” what the procedure was for reporting his injury and that if

he was ever told of this procedure then he did not remember. (Dep. at 20). The claimant testified



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that he reported his injury to Jeremiah Jenkins at some point but that he did not remember when he

actually reported it. He testified that he continued to work for the employer until June of 2008 and

avoided heavy lifting while working. The claimant testified that, prior to the February 2007 injury,

he had never suffered back problems.

       At the hearing, the claimant testified that he worked as an extruder operator for the

employer. He testified that on February 24, 2007, he bent down, picked up an air hose, twisted his

torso to return the air hose to a slot on the tray and felt a pop in his right lower back. He testified

that he immediately felt pain but that he continued to work. The claimant admitted that he did not

report it “right away” but that he was “pretty sure” that he eventually reported it to Jeremiah Jenkins

(“J.J.”), a supervisor, at some point in March of 2007. (Tr. at 7-8). The claimant testified that he

reported his injury to J.J. when they were discussing that he was not going to be able to play on the

employer‟s softball team later that spring owing to his back injury.

       He testified that he did not treat with any physicians after his injury, because he believed his

pain would resolve with time. The claimant admitted that during his deposition on December 4,

2008, he testified that he did not suffer from prior back problems. At the hearing, the claimant

testified that he thought that he was asked whether he had prior back problems “due to the injury.”

(Tr. at 17). The claimant further admitted that he did have back problems prior to February of 2007

but that his problems were not similar to what he had suffered after February of 2007.

       On cross-examination, the claimant admitted that he treated with Dr. Ginther on January 15,

2007 for a back injury but testified that it was not related to his present injury. The claimant further

admitted that he understood that he was supposed to report his injury to his employer immediately

and that he did not know exactly when he actually reported the injury to his employer. The claimant



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testified that he was “not sure” why he did not report his accident immediately. (Tr. at 23). The

claimant testified that he was “almost positive” that he reported it to J.J. (Tr. at 19). The claimant

testified that he was “not sure” when he spoke to another supervisor, Dewey Fulton, about his

injury. (Tr. at 20).

        Earl Lester Jenkins, Jr., spinning superintendent for the employer, testified that he never had

a conversation with the claimant about his injury at work. He testified that the claimant only

reported that his back had been hurting but that he never told him how he had hurt it. Mr. Jenkins

testified that he could have talked with the claimant regarding his inability to play softball in March

of 2007. On cross-examination, Mr. Jenkins admitted that he could get reprimanded if he did not

immediately fill out an accident report.

        Dewey Fulton, environmental health and safety supervisor for the employer, testified that

the claimant stated to him that he had waited seven months to request an accident report because he

did not understand the process. Mr. Fulton testified that he found it difficult to believe the claimant,

because he believed that all employees understood how to report an injury at the employer‟s place

of business.

        The record contains a September 13, 2007 memorandum addressed to Mr. Fulton from

“Judy,” who worked in the Human Resources Department. This memorandum was admitted as

Claimant‟s Exhibit 2. It states that the claimant had called her regarding his injury. Judy noted that

the claimant had stated that he had mistakenly believed that the workers‟ compensation insurance

and medical insurance were under the same carrier. Judy further noted that the claimant described

his injury and that she recommended in response that he complete an accident report. She noted




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that he found it difficult to identify the actual date of the accident. Judy indicated that she suggested

that he speak with J.J. about when their discussion about his injury had taken place.

        An Employer‟s Accident Report, admitted as Defendant‟s Exhibit 1, indicates that the

claimant reported his injury on September 14, 2007.

        On Review, the employer argues that the Deputy Commissioner erred in finding that the

claimant suffered a compensable injury by accident and that the claimant gave timely notice to the

employer.

        The burden is upon a claimant to prove by a preponderance of the evidence that he

sustained a compensable injury. Virginia Dep‟t of Transp. v. Mosebrook, 13 Va. App. 536, 537,

413 S.E.2d 350, 351 (1992) (citing Woody v. Mark Winkler Management, Inc., 1 Va. App. 147,

150, 336 S.E.2d 518, 520 (1985)). A compensable injury is an injury by accident arising out of

and in the course of the employment. Va. Code § 65.2-101. In order to prove injury by accident,

a claimant must demonstrate by a preponderance of the evidence (1) an identifiable incident;

(2) that occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural

change in the body; and (4) a causal connection between the incident and bodily change.

Hoffman v. Carter, 50 Va. App. 199, 212, 648 S.E.2d 318, 325 (2007) (citing Chesterfield

County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990)). “The phrase arising „in the

course of‟ refers to the time, place, and circumstances under which the accident occurred,” while

“arising „out of‟ refers to the origin or cause of the injury.” County of Chesterfield v. Johnson,

237 Va. 180, 183, 376 S.E.2d 73, 74 (1989).

        Section 65.2-600 of the Code of Virginia requires that an injured employee give the

employer written notice of an accident within 30 days. Written notice is unnecessary if the



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employer has actual notice of the accident through a supervisor. Goodyear Tire and Rubber

Co. v. Harris, 35 Va. App. 162, 543 S.E.2d 619 (2001). The claimant bears the burden of

proving his reasonable excuse for failing to give timely notice. Maryland Cas. Co. v. Robinson,

149 Va. 307, 141 S.E. 225 (1928). If a reasonable excuse is accepted, then the burden shifts to

the employer to prove prejudice. Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162,

543 S.E.2d 619 (2001); Andrews v. Air Movers, Inc., VWC File No. 191-14-74 (Dec. 2, 1999).

         The Deputy Commissioner found that the claimant proved a compensable injury by accident

and that the claimant gave notice within 30 days of the date of the accident to the employer. She

primarily relied upon the claimant‟s testimony.

         The Commission is not bound by the Deputy Commissioner‟s credibility decision, but

generally defers to it. See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,

363 S.E.2d 433, 437 (1987). Unless the Commission finds that the Deputy Commissioner's

determination is plainly in error, based upon the record at the hearing, we are reluctant to reverse

the Deputy Commissioner‟s factual findings. In most instances, the Commission defers to a

Deputy     Commissioner‟s     credibility   determinations   regarding   witnesses    the   Deputy

Commissioner observed first hand and from whom impressions were formed. Va. Real Estate

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

         Nonetheless, we are unable to adopt the Deputy Commissioner‟s credibility finding on

Review. At the hearing, the claimant only provided vague testimony that the back injury that he

apparently suffered before January 15, 2007 was not related to his work-related injury that

allegedly occurred on February 24, 2007. Additionally, at his deposition, the claimant testified

that he did not have any prior back injuries. The claimant further testified at his deposition that



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                                                                        VWC File No. 236-54-55


he had “no idea” how to report an accident to the employer; whereas, at the hearing, the claimant

testified that he understood that he needed to immediately report an accident to a supervisor.

The claimant‟s contradictory and vague testimony regarding the circumstances surrounding his

alleged accident severely places doubt on the credibility of the claimant‟s claim of injury by

accident at work on February 24, 2007.

       Furthermore, the medical evidence clearly indicates that the claimant was complaining of

a similar injury on January 15, 2007, more than one month prior to his alleged injury by accident

at work. Although the handwritten notes are barely legible, the Commission can decipher that

the note indicates that the claimant twisted and felt a pop in his right lower back when he was

lifting approximately one month previously. Dr. Ginther‟s July 21, 2008 letter further indicates

that the claimant reported on January 15, 2007 that he had hurt his back and right groin one

month previously. Dr. Ginther noted that the claimant did not indicate that this injury was

work-related until July 3, 2008. If we consider the above evidence, it appears that the claimant‟s

injury took place in December of 2006. In any event, there is absolutely no mention of a

February 24, 2007 work-related injury within Dr. Ginther‟s records.

       Although Dr. Lorio specifically opined that the claimant suffered a compensable injury

by accident on February 24, 2007, Dr. Lorio based his opinion on his belief that the claimant had

no symptoms prior to this alleged accident. This mistaken belief was caused by the claimant‟s

false representation of his medical history. Since Dr. Lorio clearly did not have vital information

relating to the claimant‟s prior medical history, his opinion on causation does not have a reliable

foundation. Therefore, his opinion on causation is not persuasive.




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                                                                            VWC File No. 236-54-55


       In addition to discrepancies within the claimant‟s testimony and the medical record, the

record shows that the claimant failed to seek any type of medical treatment until at least

5 months after the alleged accident.       Additionally, this July 6, 2007 medical note from

Dr. Ginther is difficult to read; therefore, we cannot even find that the claimant was obtaining

medical treatment on July 6, 2007 as a result of the alleged February 24, 2007 accident.

       Moreover, there is contradicting testimony regarding when the claimant put his employer

on notice about his alleged accident. Accordingly, we find that the claimant also failed to give

timely notice to the employer. The claimant never testified that he gave notice within 30 days.

At most, he testified that he was “almost positive” that he reported the February 24, 2007 incident

to J.J “[p]robably in March sometime I would guess.” (Tr. at 19, 8). This testimony is far too vague

to support the claimant‟s assertion that he gave notice within 30 days of the date of the alleged

accident. Furthermore, the claimant did not provide a reasonable excuse for his delay in giving

notice, and as a result of the claimant‟s apparent seven-month delay in giving notice, the employer

was prejudiced as it was not able to quickly investigate the claimant‟s allegations or to render

necessary medical attention to minimize the effect of any alleged injury.

       Therefore, upon a Review of the record in its entirety, we find that the claimant was not

able to meet his burden of proving that he suffered a compensable injury by accident on

February 24, 2007 and that the claimant failed to give timely notice of the alleged incident to the

employer.

       For the reasons stated above, the January 9, 2009 Opinion of the Deputy Commissioner is

REVERSED and the Award is VACATED.




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                                                                        VWC File No. 236-54-55


DIAMOND, COMMISSIONER, Dissenting:

       I respectfully dissent from the Majority‟s reversal of the Deputy Commissioner‟s

credibility determination finding an injury by accident and notice.

       The Deputy Commissioner explicitly made a credibility finding based on the record and

on the demeanor of the claimant whom she observed in person. The Commission should be

reluctant to dissect the record to offer its own credibility finding when there is a reasoned basis

for the Deputy Commissioner‟s finding, especially when there is a demeanor finding and when

the claimant actually physically demonstrates the nature of the accident.

       The Deputy Commissioner logically and thoroughly explained her reasoning:

              The claimant demonstrated at the hearing the action in which he was
       involved, a combination of bending and twisting, when he felt a “pop” in his back
       and had immediate pain. His testimony at the hearing is consistent with his
       deposition testimony, and with the history he gave Dr. McClintic, Dr. Lorio, and
       the employer.

               We are mindful of the discrepancies in the records of Dr. Ginther, who
       indicated in a July 21, 2008 letter that the claimant first sought treatment in
       January 2007 for treatment of this injury, but did not give a history of it being
       work-related until July 2007. The claimant explained that he saw Dr. Ginther in
       January 2007 for an non-work related condition, and that in July 2007 he
       attempted to inform the physician about this occupational injury, which occurred
       in February 2007. The handwritten office notes of Dr. Ginther are only partially
       legible, and his records are contradictory in other aspects as well. (Footnote
       omitted.)

              We find the claimant‟s testimony at the hearing to be credible. While he
       was easily confused and uncomfortable in the hearing setting, the claimant made
       appropriate eye contact. His answers were forthcoming and non-evasive, if
       unsophisticated.

               Weighing the evidence as a whole, we find that the claimant sustained an
       injury by accident arising out of and in the course of his employment . . .




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                                                                        VWC File No. 236-54-55


       While the Commission is not bound by the credibility decision of a deputy commissioner,

we will not arbitrarily reject it. Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,

363 S.E.2d 433, 437 (1987). In most instances, we defer to a deputy commissioner‟s credibility

determinations regarding witnesses he or she observed firsthand and from whom impressions

were formed. Va. Real Estate Board v. Kline, 17 Va. App. 173, 435 S.E.2d 596 (1993); Grayson

School Board v. Cornett, 39 Va. App. 279, 286, 572 S.E.2d 505, 508, n. 2 (2002) (“The rule,

however, is that while deference is generally given to the deputy commissioner‟s credibility

finding, the full commission has authority to assess the credibility of a witness. 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.”)

       The Deputy Commissioner further based her finding of timely notice on her weighing of

the testimony of three witnesses.

       There is no sound basis to overturn well-reasoned findings based on demeanor, physical

demonstrations, and a thorough review of the record including both supportive and conflicting

evidence.

       I would affirm the Deputy Commissioner and defer to her credibility findings.




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                                                                  VWC File No. 236-54-55


                                        APPEAL

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

30 days of receipt.


cc:    Frank Karban
       Universal Fiber Systems, LLC
       Pennsylvania Manufacturers Association
        Insurance Company




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