Opinion
Record No. 2291-92-3
July 13, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Robert M. McAdam (Wooten Hart, on briefs), for appellants.
Paul L. Phipps (Wolfe Farmer, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Koontz.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Employer, Norris Trim, seeks reversal of the commission's findings that employer must compensate claimant for partial disability benefits from September 16, 1991, through December 2, 1991, and for temporary total disability benefits commencing December 3, 1991, continuing until further order of the commission. We affirm and hold that (1) because of inaccuracies in the employer's application, the commission was not bound by the deputy commissioner's opinion of November 27, 1991, and (2) credible evidence supports the commission's award for claimant's disability and finding that claimant made a reasonable effort to market his remaining work capacity.
On November 5, 1990, Ricky Russell, claimant, sustained a lumbar strain while working at Norris Trim. The claim was accepted as compensable and compensation was paid from December 21, 1990, through August 18, 1991.
On October 31, 1991, employer filed an Application for Hearing, alleging that claimant had returned to work on August 19, 1991, at his pre-injury wage of $8.41 per hour. The deputy commissioner's opinion was based on employer's application and compensation was suspended upon a finding that claimant's wage loss had ceased, and, therefore, claimant's incapacity had ceased.
The current claim came before the commission on the claimant's application of December 16, 1991, seeking compensation for partial wage loss from August 19, 1991, through December 2, 1991, when claimant was laid off for economic reasons. Compensation for total disability is claimed beginning December 3, 1991, based upon continuing partial disability and claimant's reasonable effort to market his remaining capacity to work. After evidence was taken, the deputy commissioner's opinion of June 30, 1992, was rendered.
The deputy commissioner noted that the employer's application of October 31, 1991, which was the basis for Deputy Commissioner Wilhoit's decision of November 27, 1991, contained erroneous information as to the claimant's earnings upon his return to work.
Claimant's testimony was that he actually returned to work at $7.92 per hour on August 19, 1991 and was later raised to $8.15 per hour on September 15, 1991, and continued at this wage until his layoff for economic reasons on December 2, 1991. Claimant did not start back at his pre-injury wage of $8.41 per hour as employer alleged in its initial Application for Hearing.
The deputy commissioner concluded that the commission was not bound by Deputy Commissioner Wilhoit's finding that claimant's incapacity had ceased on August 18, 1991.
The deputy commissioner, notwithstanding the above conclusion, denied benefits, finding no medical evidence to support claimant's continuing disability after June 20, 1991, and that claimant had not made a reasonable effort to market his remaining capacity to work.
The commission affirmed the finding that claimant was not bound by Deputy Commissioner Wilhoit's opinion that claimant returned to work at his pre-injury wage that was based on the false information in employer's Application for a Hearing. However, the commission reversed the deputy commissioner's findings regarding the award and awarded claimant temporary partial disability benefits of $12.27 per week for the period September 16 through December 2, 1991, and temporary total disability benefits of $229.61 per week commencing December 3, 1991, and continuing until further order of the commission. Because the claimant's application was filed on December 16, 1991, Rule 13 only permits compensation to be awarded up to ninety days prior to the filing of the application, or September 16, 1991, in this case.
I.
Employer contends that the commission erred in disregarding Deputy Commissioner Wilhoit's opinion of November 27, 1991, and that such opinion precludes claimant from a hearing on the matter under the doctrine of res judicata.
Employer concedes that Deputy Commissioner Wilhoit's November 27, 1991 finding that claimant was no longer disabled was basedsolely on employer's incorrect information that claimant had returned to his pre-injury wage. Although the application indicated that claimant returned to work at his pre-injury wage of $8.41 per hour, the evidence at the claimant's hearing revealed that, in fact, claimant returned at a lower wage.
This Court has held that, "absent fraud or mistake, the doctrine of res judicata bars further litigation on that claim." Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 604, 401 S.E.2d 200, 202 (1991) (emphasis added). Here, there was a mistake regarding the wage amount, and, thus, the doctrine of res judicata does not bar claimant's Application for Hearing of December 16, 1991.
II.
Employer next contends that no credible evidence supports the commission's disability awards for the periods from September 16, 1991, through December 2, 1991, and from December 3, 1991, continuing until further order of the commission.
Upon appellate review, the findings of fact made by the Workers' Compensation Commission will be upheld when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The first portion of the award at issue is the compensation for wage loss from August 18, 1991, to December 2, 1991.
Dr. Peavyhouse's uncontradicted report is that as of June 20, 1991, claimant had a "ten percent permanent partial functional impairment of the body as a whole as a result of lumbar disc injury." The work restrictions placed on claimant by Dr. Peavyhouse precluded claimant from returning to pre-injury work. This evidence constitutes credible evidence in support of the commission's finding that the wage loss between August 18, 1991, and December 2, 1991, was the direct result of claimant's industrial injury.
We must also determine whether credible evidence supports the finding that claimant made a reasonable effort to market his residual capacity. See National Linen Service v. McGuinn, 8 Va. App. 267, 268, 380 S.E.2d 31, 32 (1989); Great Atlantic Pacific Tea Co. v. Bateman, 4 Va. App. 459, 463-64, 359 S.E.2d 98, 100 (1987).
The commission found that because claimant returned to his employer at a wage approximating his pre-injury wage and had worked for employer for ten years, the claimant had made a reasonable effort to market his residual capacity. The commission also found that claimant was under no obligation to seek other employment at a higher wage, in light of Dr. Peavyhouse's restrictions. This finding is supported by credible evidence and is consistent with our decision in McGuinn.
The second portion of the award at issue is for the period from December 3, 1991, continuing until further order from the commission.
The commission found that the restrictions imposed by Dr. Peavyhouse are permanent. This finding is supported by credible evidence, namely by Dr. Peavyhouse's uncontradicted statements of June 20, 1991.
The commission found also that claimant made a reasonable effort to market his remaining work capacity after December 3, 1991. The commission noted that claimant registered for employment with the Virginia Employment Commission on December 4, 1991; claimant initially contacted an average of one employer a week; beginning in March 1992 claimant contacted two employers per week on average; and claimant contacted five potential employers, all without success, in May 1992. Claimant's efforts are supported by credible evidence, namely claimant's detailed job search booklet from December 6, 1991, through May 11, 1992, which outlines potential places of employment that the commission could have inferred provided employment within claimant's skills and abilities.
Based on the claimant's efforts in this case, the record contains credible evidence to support the finding by the commission that the claimant made a reasonable effort to market his residual work capacity for this later period of disability. See McGuinn, 8 Va. App. at 268, 380 S.E.2d at 32.
Accordingly we affirm the commission's award to claimant.
Affirmed.