Whitt & Del Bueno, Attorneys at Law

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Seven Recent Decisions Worth Knowing

By Ralph Whitt

Several decisions have come down from the Commission and the Court of Appeals that are probably worthwhile for claims adjusters and risk management personnel to know about. The marketing issue has received a lot of attention with favorable decisions by the Supreme Court in Ford Motor Co. v. Favinger and the Court of Appeals applying Favinger in cases our firm handled: Smith v. James City County and CVS v. Plunkett. Two decisions from the Court of Appeals in March of 2011, however, one upholding the Favinger line of cases and one diverging from that decision, are worth noting. In Chaney v. Honeywell, the Court of Appeals found that the facts of that case were virtually identical to Favinger where the claimant worked a 40-hour light duty job but not his regular overtime hours and failed to market the shortfall in hours and thus, was not entitled to any compensation. A few weeks later, the Court of Appeals decided Ross & Sons Utility v. Hively, where the claimant normally worked 45-50 hours a week but found light duty on his own at 34 hours a week at a lower hourly rate as well. He did not market to find additional work or hours elsewhere. The Court relied on Favinger, but in a strange twist, instead of denying the claim for compensation outright, it fashioned a new remedy by remanding the case back to the Commission for calculation of the claimant’s TPD benefits based on the difference between claimant’s post-injury average weekly wage and what his pre-injury average weekly wage would have been had he only worked 34 hours per week. This remedy does not appear consistent with Favinger or the other published Court of Appeals decisions on marketing, so its impact remains to be seen.

In a February 2, 2011 decision, Thorpe v. Clary, the Court of Appeals affirmed a split decision of the full Commission regarding how to calculate the average weekly wage for a one-time project, in this case lasting one week or less. The claimant received $2,500 as his share of the contracted job. The Court of Appeals rejected the claimant’s argument that his average weekly wage should be $2,500 which was also the position of Commissioner Diamond who dissented from the majority opinion of the full Commission; instead, the Court affirmed that it was proper to divide the $2,500 one-time payment by 52 because in this particular case, there was no other evidence that the claimant engaged in this type of work on a regular basis before or after the accident. The Court hinted that each case turns on its own peculiar facts but this case does give some instruction on how to handle this type of situation.

The full Commission decided in Drummond v. CICA dated May 10, 2011, again in a split decision, that defendants are not required to produce surveillance videotape of the claimant before taking the claimant’s deposition in order to encourage truthfulness by all parties and not to prejudice the defendants’ defense of the claim. A similar deputy commissioner ruling held that this principle also applied to videotape of the claimant taken at the time of the accident. Commissioner Diamond dissented, arguing that defendants must produce the videotape at any time upon proper request in discovery.

The Court of Appeals in an unpublished opinion dated April 5, 2011, Maas v. Loudoun County, denied the claim of a patrol officer who claimed that he injured his knee getting out of a “cramped” patrol car on a thirty-degree incline in full uniform and gear because “simple acts of stepping, walking and turning are not risks of the employment” and more importantly, none of the medical records mentioned any of these conditions as factors in the injury.

In Family Dollar v. Presgraves, decided December 21, 2010, the Court of Appeals took on the issue of when is repetitive movement still an “injury by accident” by affirming an award in a case where the claimant injured his back cranking a handle on a truck “landing gear” for ten to thirty minutes. The Court noted that this was “not an activity that was normal, repetitive work required of his position” and that the injury was the result of a “single event of cranking on a definite occasion during the performance of the specific piece of work such that it was an identifiable incident.”

In VEPCO v. Earley, decided March 23, 2010, the Court of Appeals affirmed that a claimant, who has a compensable injury and a treating physician, is nevertheless justified in seeking treatment from a doctor of her own choosing after a gap in treatment because the claimant claimed that she did not know to return to the treating physician and the adjuster did not return the claimant’s call before seeking further treatment on her own to advise the claimant to return to the treating physician for all accident-related medical conditions. The key here appears to be the lack of communication by both the employer and the adjuster in failing at all relevant times and inquiries by the claimant to advise and remind the claimant that for all accident-related medical conditions, she must treat with the treating physician.