Securitas Security Services USA, Inc. & Indemnity Ins. Co. of…

                                             COURT OF APPEALS OF VIRGINIA

              Present: Judges Humphreys, Russell and AtLee

              Argued by videoconference

               OF NORTH AMERICA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0379-20-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                                OCTOBER 13, 2020
              CAROLYN E. GERSCH


                               Roberta A. Paluck (Christopher M. Kite; Lucas & Kite, PLC, on
                               brief), for appellants.

                               Michael J. Beste (Reinhardt Harper Davis, PLC, on brief), for

                     On February 5, 2020, the Workers’ Compensation Commission (“the Commission”)

              found that Carolyn E. Gersch (“Gersch”) was properly awarded continuing temporary total

              disability benefits as of July 24, 2019. Her employer, Securitas Security Services USA, Inc.

              (“Securitas”) now appeals. Securitas contends that no credible evidence exists to support the

              Commission’s finding that Gersch was entitled to temporary total disability benefits beginning

              January 17, 2019 and continuing until conditions justified a modification thereof.

                                                      I. BACKGROUND

                     On January 10, 2018, Gersch sustained injuries while working as a security officer with

              Securitas when she was “trying to open and pass through a heavy gate when she caught her left

              foot on a curb, causing her to trip.” On February 22, 2018, Gersch filed a claim for benefits for

                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the same injuries. Shortly thereafter, she began treatment for her left shoulder and left hip

injuries with Dr. Robert T. Wyker (“Dr. Wyker”). Dr. Wyker recommended Gersch undergo

surgery on her left shoulder, which he performed on July 25, 2018. Dr. Wyker placed her on

temporary total disability beginning on the date of shoulder surgery through November 13, 2018.

       On January 17, 2019, Dr. Wyker again totally restricted Gersch from work in anticipation

of a total replacement of her left hip. Her hip surgery took place on March 18, 2019. At a

follow-up visit on May 14, 2019, Dr. Wyker noted that Gersch was not to return to work. Gersch

made a subsequent appointment to see Dr. Wyker on June 11, 2019, sooner than her next

scheduled visit, because she “was doing well with essentially no pain until a couple weeks ago

when she started getting increasing discomfort in her left groin.” Dr. Wyker speculated that the

soreness “was soft tissue in nature” and planned to recheck her in four to six weeks.

Dr. Wyker’s notes from the June 11 visit do not reference Gersch’s ability to work.

       Prior to the evidentiary hearing, Gersch’s counsel sent Dr. Wyker a questionnaire that

inquired whether she was totally disabled from employment in connection with her injuries.

Dr. Wyker filled out the form and returned it on July 24, 2019, wherein he answered that Gersch

was not totally disabled and was at least able to perform “light duty sedentary type work.”

       Twelve days after Dr. Wyker filled out the questionnaire regarding Gersch’s work status,

on August 5, 2019, an evidentiary hearing was held before the deputy commissioner. Gersch

testified at the hearing that she had not been informed by either Dr. Wyker or her counsel that

she was released for sedentary work. Gersch was not “contemporaneously evaluated” by

Dr. Wyker when he replied to the questionnaire nor did she see or talk to Dr. Wyker between

July 24, 2019 and August 4, 2019. The Commission also noted that Dr. Wyker’s questionnaire

response was not filed with it until the evidentiary hearing.

       On September 13, 2019, the deputy commissioner awarded Gersch medical benefits for

her shoulder and hip injuries. She was also awarded temporary total disability from July 25,

2018 through November 22, 2018, and temporary total disability beginning January 17, 2019,

and continuing until conditions justified a modification thereof.

       On February 5, 2020, the Commission affirmed each of the deputy commissioner’s

findings. Specifically, the Commission found that because the medical record provided no

statement that her work status had changed, Gersch denied knowledge of light duty work release

after July 24, 2019, and the deputy commissioner found her to be a credible witness, Gersch did

not have a duty to market her residual physical capacity. Accordingly, the Commission held the

continuing award of temporary total disability proper. Securitas appeals only the Commission’s

affirmance of the award of total disability on and after July 24, 2019.

                                         II. ANALYSIS

                                      A. Standard of Review

       “An award by the Commission is conclusive and binding as to all questions of fact.”

Newport News Shipbuilding & Dry Dock Co. v. Wardell Orthopaedics, P.C., 67 Va. App. 404,

412 (2017) (quoting Ford Motor Co.v. Favinger, 275 Va. 83, 88 (2008)); see also Code

§ 65.2-706(A). Whether a claimant suffers a continuing disability is a question of fact to be

determined by evidence. See Hoffman v. Carter, 50 Va. App. 199, 216 (2007). On appeal, we

view the evidence in the light most favorable to the party prevailing below. See R.G. Moore

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212 (1990). As such, “[w]e are bound by the

[C]ommission’s factual findings where those findings are supported by credible evidence in the

record,” despite the existence of contrary evidence or contrary evidentiary inferences. Herbert

Clements & Sons, Inc. v. Harris, 52 Va. App. 447, 452 (2008) (quoting Tomes v. James City

Fire, 39 Va. App. 424, 430 (2002) (interpreting Code § 65.2-706)). “The scope of a judicial

review of the fact finding function of a workers’ compensation commission [, therefore,] is

‘severely’ limited, partly in deference to the agency’s expertise in a specialized field.” Southside

Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828 (2000) (alterations in original) (quoting Ga.-Pac.

Corp. v. Robinson, 32 Va. App. 1, 4-5 (2000)).

                    B. Entitlement to Continuing Temporary Total Disability

       A party seeking compensation bears the burden of proving her disability and the periods

of that disability. See Marshall Erdman & Assocs. v. Loehr, 24 Va. App. 670, 679 (1997). The

test for determining whether a claimant failed to make reasonable efforts to market his or her

residual skills and forfeited the right to compensation is not a bright line but rather involves a

multitude of factors. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467 (1987). In

determining what constitutes a reasonable effort to market remaining work capacity, we analyze

the claimant’s efforts both in the context of reasonableness and dependent upon all the facts and

surrounding circumstances. See Ridenhour v. Newport News, 12 Va. App. 415, 418 (1991)

(quoting Bateman, 4 Va. App. at 467). This necessarily includes consideration of the claimant’s

perception of his or her condition, abilities, and employability, and of the claimant’s basis for

that perception. See id.

       Securitas argues that, contrary to the Commission’s finding, there is “no medical

evidence” in the record to support Gersch’s testimony that she was continually totally disabled

after July 24, 2019. While Gersch’s testimony in front of the deputy commissioner is, in and of

itself, evidence, Securitas continues to assert the Commission’s finding that Gersch was entitled

to total disability benefits after July 24, 2019 is unsupported.

       In this case, there is evidence to support the Commission’s conclusion that Gersch proved

an ongoing disability. Medical records and testimony supported the assertion that on January 17,

2019, Gersch was placed on total disability by Dr. Wyker pending a left total hip replacement in

March and after the surgery, Dr. Wyker continued her out of work status. On May 14, 2019,

contemporaneous to a physical evaluation, Dr. Wyker continued Gersch’s total disability status.

Dr. Wyker saw Gersch again on June 11, 2019, when she reported “increasing discomfort.” He

did not make any notes regarding her disability status at that visit. The first change in her work

status occurred when Gersch’s counsel sent a questionnaire to Dr. Wyker on July 24, 2019,

wherein he disagreed that she was totally disabled and stated that she would at least be able to do

“light duty sedentary type work.” Twelve days later, on August 5, 2019, at an evidentiary

hearing before the deputy commissioner, Gersch testified that Dr. Wyker’s answers to the

questionnaire had not been previously communicated to her.

       If evidence, or reasonable inferences drawn from the evidence, supports the

Commission’s findings, they will not be disturbed by this Court on review even if the record

could support a contrary finding. See Advance Auto v. Craft, 63 Va. App. 502, 520 (2014)

(quoting Amelia Sand Co. v. Ellyson, 43 Va. App. 406, 408 (2004)).

       Here, the Commission affirmed the deputy commissioner’s finding that the medical

record explicitly detailed Gersch’s no-work status as of May 14, 2019 and lacked any indication

that her total disability changed as of the June 11, 2019 medical evaluation. Gersch testified that

the doctor did not give her a note regarding an updated light duty work status. She stated that

she understood that she was disabled and unable to work up to and until the evidentiary hearing,

when she learned about Dr. Wyker’s questionnaire response. The Commission noted that the

deputy commissioner found Gersch to be a credible witness at the hearing. This evidence,

separately and in the aggregate, supports the Commission’s finding that Gersch was reasonably

unaware she had residual work capacity and was entitled to temporary total disability after July

24, 2019.1

                                        III. CONCLUSION

   Because there is credible evidence to support the Commission’s finding that Gersch’s

continuing total disability benefits after July 24, 2019 were proper, it will not be disturbed on

review. For these reasons, the Commission did not err.


          Although they assigned no error on this basis, Securitas argues on brief that the
Commission improperly applied the Ridenhour test regarding the reasonability of Gersch’s
perception that she was totally disabled after Dr. Wyker’s questionnaire response. They contend
she had a duty to market regardless of when she because aware of sedentary work release and
impliedly assert the Commission erred in finding Gersch made a “reasonable effort” to market
her remaining capacity. However, Securitas did not actually assign error to this ruling. Per this
Court’s Rules, we address only arguments raised by an appellant’s express “assignments of
error” in their brief. See Rule 5A:20(e), cited in Ceres Marine Terminals v. Armstrong, 59
Va. App. 694, 710 (2012).
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