Va. Alcoholic Beverage Control Auth. v. Blot

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VIRGINIA ALCOHOLIC BEVERAGE CONTROL AUTHORITY/ COMMONWEALTH OF VIRGINIA v. THOMAS BLOT

No. 1395-21-2

Court of Appeals of Virginia

September 6, 2022

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Scott John Fitzgerald, Senior Assistant Attorney General (Jason S Miyares, Attorney General; Steven G. Popps, Deputy Attorney General; Marshall H. Ross, Section Chief; Jacqueline C Hedblom, Acting Section Chief, on briefs), for appellant.

William G. Sweeney, Jr. (Geoff McDonald and Associates, on brief), for appellee.

Present: Judges Humphreys, Causey and Senior Judge Clements Argued at Richmond, Virginia

MEMORANDUM OPINION ^[*]

JEAN HARRISON CLEMENTS JUDGE

The Virginia Alcoholic Beverage Control Authority and the Commonwealth of Virginia (collectively, "the Commonwealth") appeal a decision of the Workers' Compensation Commission ("the Commission") awarding Thomas Blot temporary partial disability benefits. The Commonwealth argues that the Commission erred in awarding Blot temporary partial disability benefits "because no evidence causally related . . . Blot's wage loss to the work accident." The Commonwealth also argues that the Commission erred in awarding Blot temporary partial disability benefits because he presented insufficient evidence that he had marketed his residual work capacity. For the following reasons, we reverse the Commission's judgment.

BACKGROUND

"On appeal from a decision of the Workers' Compensation Commission, the evidence and all reasonable inferences that may be drawn from that evidence are viewed in the light most favorable to the party prevailing below." Anderson v. Anderson, 65 Va.App. 354, 361 (2015) (quoting Artis v. Ottenberg's Bakers, Inc., 45 Va.App. 72, 83 (2005) (en banc)).

On December 15, 2019, Blot was working as a part-time sales associate at a Virginia ABC store. Blot approached a register to serve a customer but tripped over a rug that was "bunched up" on the floor behind the register and "wrenched" his knee. Blot immediately felt pain in his right knee but continued serving the customer. After the customer left the store, Blot reported the incident to the manager on duty, Michael Lowe. Lowe explained that the store manager, Mary Waldman-Seay, had placed small rugs on top of a rubber mat behind the register, but they were uneven, rough, and curled at the edges. Lowe also had tripped over the rugs several times and informed Waldman-Seay that they were a tripping hazard, but she ignored his report. Lowe also testified that Waldman-Seay ignored Blot's injury and did not offer any medical treatment when Blot reported it to her on December 16, 2019.

Waldman-Seay testified that Blot began complaining about tripping over the rugs after January 2020, so she stored them in a back room. She claimed that Blot did not complain to Lowe when he "supposedly" injured his knee. Waldman-Seay could not recall when she was informed of the injury, the manner in which the injury was reported, or her reaction. Nor could she recall whether she changed the rugs when she began working at the ABC store or whether anyone other than Blot had complained about tripping over the rugs.

In January 2020, Blot sought treatment for his knee from Dr. Steven J. Hospodar, an orthopedic surgeon. At an appointment on January 23, 2020, Blot reported knee pain while walking, standing, ascending and descending stairs, squatting, kneeling, during exercise, and bending. Dr. Hospodar found that Blot's right knee showed tenderness but satisfactory range of motion and stability. He treated Blot's knee with a series of cortisone injections and told him to avoid activities that caused pain. Although Blot's pain was controlled by intermittent injections, his symptoms worsened, and Dr. Hospodar ordered an MRI in April 2020, which revealed that Blot had a horizontal medial meniscus tear. Dr. Hospodar continued to treat Blot's knee with corticosteroid injections because of restrictions on elective surgeries due to the COVID-19 pandemic and told Blot that if the injections provided relief, knee surgery could be avoided.

On March 30, 2020, Blot's cardiologist "took [him] out of work" over concerns surrounding the COVID-19 pandemic. Blot admitted that his decision to stop working was not related to his knee injury. On February 11, 2021, after receiving his COVID vaccine injections, Blot asked Dr. Hospodar for a "note" permitting him to return to work on "light duty." Dr. Hospodar indicated that Blot's substantial discomfort worsened with heavy activity and gave him a note that simply stated, "[l]ight duty." Although Dr. Hospodar did not detail what restrictions "[l]ight duty" encompassed, Blot testified that he was not supposed to squat; Dr. Hospodar placed no restrictions on the number of hours Blot could work.

On February 11, 2021, Blot returned to his pre-injury sales associate position at the ABC store but only worked six to eight hours per week because Waldman-Seay had replaced him. In addition, the store had implemented changes to its system, and Blot "had to relearn all the equipment and procedures again." Blot explained that he worked fewer hours because of scheduling issues and the need to be retrained, not his knee injury. Between February 15, 2021, and April 30, 2021, Blot applied for fifty-four jobs attempting to market his residual work capacity. None of his applications was successful. He recorded each job he applied for and the outcome of each application in a marketing log.

Blot filed a claim for benefits seeking a lifetime medical award, temporary total disability benefits from March 30, 2020, through February 10, 2021, and temporary partial disability benefits from February 11, 2021, and continuing. After a hearing on the claim, the deputy commissioner found that Blot and Lowe were credible witnesses and discounted Waldman-Seay's testimony because she could not answer most of the questions asked of her. The deputy commissioner found that Blot had suffered an injury by accident on December 15, 2019, and awarded him lifetime medical benefits.

The deputy commissioner denied Blot's request for temporary total disability benefits between March 20, 2020, and February 10, 2021, finding that he stopped working due to the COVID-19 pandemic, not his compensable injury. The deputy commissioner also denied Blot's request for temporary partial disability benefits beginning February 11, 2021, finding that the reduction in Blot's work hours was not related to his compensable injury but "to scheduling issues and the fact that [Blot] had to be retrained." The deputy commissioner held that Blot began marketing his residual work capacity on February 15, 2021, but concluded that his "inability to work additional hours with" the ABC store was "not related to the work accident."

On review, the Commission affirmed in part and reversed in part. The Commission found that Blot had sustained a compensable injury by accident and that the medical treatment Blot received from Dr. Hospodar was causally related to the accident. The Commission reviewed Blot's marketing log and determined that it "demonstrated a reasonable effort to secure suitable light duty work." Accordingly, it found that Blot's inability to work additional hours was causally related to the work accident and, "in the interests of judicial economy," awarded him temporary partial disability beginning February 11, 2021. This appeal follows.

ANALYSIS

The Commonwealth argues that the Commission erred as a matter of law when it awarded temporary total disability benefits to Blot beginning February 11, 2021, because "no evidence causally related [his] wage loss to the work accident." The Commonwealth emphasizes that Blot continued to work as a sales associate for months after his injury and ceased working in March 2020 only "because of the pandemic." After Dr. Hospodar's note released him to "light duty" on February 11, 2021, without any specific restrictions, he returned to his "same position-sales associate-at his pre-injury hourly rate" even though he was partially disabled. Moreover, considering that Blot admitted his reduced hours were because of "scheduling issues and the need for retraining," not his injury, the Commonwealth asserts that there was no evidence that his lost wages were causally related to his injury. We agree.

The Commission may award temporary partial disability benefits for "incapacity for work resulting from [a compensable] injury." Code § 65.2-502 (emphasis added). "[W]here an injured worker is only partially disabled," however, Code § 65.2-502 "presumes . . . that [the] employee can continue working either on restricted duty or in an altogether new job." McKellar v. Northup Grumman Shipbuilding, Inc., 290 Va. 349, 357 (2015). "As a result, economic loss is the appropriate test for the compensation award in cases of partial incapacity." King William Cnty. v Jones, 66 Va.App. 531, 541 (2016) (en banc) (quoting McKellar, 290 Va. at 357). "An economic loss analysis . . . require[s] proof that a claimant suffered an actual economic loss in the labor market" because of his compensable injury "and did not merely lose the theoretical capacity to perform abstract job functions."^[1] Id.

Consistent with those principles, we have held that it would be "impermissible" if "a partially disabled worker who is laid off for reasons other than [his] work-related disability" was "entitled, subject only to a marketing requirement, to disability benefits during a period of unemployment." Id. at 548 (emphasis added). Such a result would transform the Workers' Compensation Act to "nothing more than another form of unemployment insurance." Id. Accordingly, it is now an "established principle" that partial disability benefits can be awarded only after a...