Metro Machine Corporation, et al. v Isaac L. Lamb

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
METRO MACHINE CORPORATION AND
LEGION INSURANCE COMPANY
OPINION BY
v. 	Record No. 3044-99-2 	JUDGE RUDOLPH BUMGARDNER, III
AUGUST 15, 2000
ISAAC L. LAMB
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
F. Nash Bilisoly (Kelly O. Stokes;
Vandeventer Black, LLP, on briefs), for
appellants.
Gregory E. Camden (Montagna, Klein & Camden,
L.L.P., on brief), for appellee.
Metro Machine Corporation appeals the Workers' Compensation
Commission's award of benefits to Isaac L. Lamb. 	The employer
argues the commission erred (1) in finding the employee's claim
was not barred by the statute of limitations, (2) in finding the
employee was entitled to benefits because he had not been
released to pre-injury work, and (3) in finding he was entitled
to benefits after he was laid off for economic reasons. 	For the
following reasons, we affirm.
On appeal, we view the evidence, and all reasonable
inferences deducible therefrom, in the light most favorable to
the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 	The

factual findings by the commission that are supported by
credible evidence are conclusive and binding upon this Court.
See Code § 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va.
App. 227, 229, 409 S.E.2d 824, 826 (1991).
So viewed, the evidence established that the employee
worked as a rigger for the employer when he suffered a
compensable injury to his back on January 23, 1993. 	In November
1997, the parties stipulated that the employee was disabled from
January 25, 1993 through January 23, 1994 and from September 6,
1994 through October 9, 1994 and that he marketed his residual
work capacity.
The employee was a rigger who moved wheels, shelves, pumps,
engines, and other equipment from a dock to Navy ships. 	Riggers
worked on the dock and on the ships to move equipment weighing
between 40 pounds, which they carried, and five tons. 	The
employee worked in both places. 	On the dock, riggers moved the
heavier equipment with a forklift and four-wheeled dollies. 	To
get the equipment onto the ships, riggers hooked it onto cranes
with chain falls, which the employee was able to do by himself.
Riggers on the ship received the heavy equipment and maneuvered
it to where it belonged. 	To move the equipment, riggers used
the dollies, which they carried to different levels on the ship.
Riggers also built scaffolding inside the tanks, which required
the ability to manage stairs and to lift and maneuver heavy
wooden boards.
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The employer contends the employee's claim is barred by the
statute of limitations. 	It argues that because the employee did
not request a hearing date until June 3, 1997, he failed to
establish his work incapacity within two years from the date of
his injury. 	This argument is without merit.
A claim for compensation must be filed within two years
after the accident or the claim is forever barred. 	See Code
§ 65.2-601.1 Formal pleadings are not required. 	See Reese v.
Wampler Foods, Inc., 222 Va. 249, 255, 278 S.E.2d 870, 873
(1981). 	So long as the claimant's notice advises the commission
of necessary elements of his claim, "'it activates the right of
the employee to compensation and . . . invokes the jurisdiction
of the Industrial Commission.'" 	Trammel Crow Co. v. Redmond, 12
Va. App. 610, 614, 405 S.E.2d 632, 634 (1991) (attorney's letter
to commission, which contains required information, satisfied
filing requirement) (quoting Shawley v. Shea-Ball Constr. Co.,
216 Va. 442, 446, 219 S.E.2d 849, 852 (1975)).
The employee's September 27, 1994 claim letter satisfied
the filing requirement. 	It advised the commission that he
suffered an injury to his back while working for the employer on
January 23, 1993 and stated a claim "for all benefits to which
he is or may be entitled" under the Workers' Compensation Act.
1 Code § 65.2-601 provides, in part, that "[t]he right to
compensation under this title shall be forever barred, unless a
claim be filed with the commission within two years after the
accident."
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The employer further argues the employee's claim is barred
because he did not prove he was disabled within two years of the
accident. 	Contrary to the employer's assertion, the employee is
not required to prove the disability during the two-year period.
Cf. Southwest Virginia Tire, Inc. v. Bryant, 31 Va. App. 655,
661, 525 S.E.2d 563, 566 (2000) (in change in condition
application, claimant not required to produce evidence prior to
expiration of two years). 	Instead, the employee's claim must
allege a present and existing disability within two years of the
accident, and he must prove that disability to receive benefits.
Compare Johnson v. Smith, 16 Va. App. 167, 170, 428 S.E.2d 508,
510 (1993) (commission's denial of benefits reversed where
claimant proved disability existed during statute of limitations
period), and WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 229,
494 S.E.2d 147, 151 (1997) (benefits denied because disability
did not commence until two years after accident).
The fact that the employee did not seek a hearing within
two years of the accident does not bar his claim. 	The parties
stipulated to various disability periods, which are supported by
the medical records and fall within two years of the accident
date. 	The employee's claim was not barred by the statute of
limitations, and the commission did not err.
We reject the employer's alternative argument that Code
§ 65.2-708 bars the employee's change in condition request
because it was untimely. 	The statute requires a change in
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condition request to be filed within two years of an award of
benefits under the Act. 	See Mayberry v. Alcoa Bldg. Prods., 18
Va. App. 18, 21, 441 S.E.2d 349, 350-51 (1994) (absent entry of
formal award there is nothing to review). 	The employer contends
the employee was last paid compensation under the Longshore and
Harbor Workers' Compensation Act on October 4, 1994 and a change
in condition application should have been filed by October 5,
1996. 	An award under the LHWCA, however, is not an award under
the Workers' Compensation Act. 	See Virginia Int'l Terminals v.
Moore, 22 Va. App. 396, 402, 470 S.E.2d 574, 577 (1996), aff'd,
254 Va. 46, 486 S.E.2d 528 (1997). 	We conclude Code § 65.2-708
is inapplicable because there was no prior award under the Act
to review.
Next, we consider whether the employee returned to his
pre-injury work. 	The employer argues the employee is not
entitled to benefits because he performed his pre-injury work
and worked as many hours as other riggers.
"The threshold test of compensability is whether the
employee is 'able fully to perform the duties of his preinjury
employment.'" 	Celanese Fibers Co. v. Johnson, 229 Va. 117, 120,
326 S.E.2d 687, 690 (1985) (quoting Sky Chefs, Inc. v. Rogers,
222 Va. 800, 805, 284 S.E.2d 605, 607 (1981)). 	"In determining
whether an injured employee can return to his or her pre-injury
employment duties the Commission does not look at how the duties
could ideally be performed, but rather, how the duties were
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actually performed." 	Clinchfield Coal Co. v. Parrot, 22 Va.
App. 443, 446-47, 470 S.E.2d 597, 598-99 (1996) (when mechanic's
work involves heavy lifting in excess of his doctor's
restrictions, he is unable to fully perform his pre-injury
duties). 	See Carr v. Virginia Elec. & Power Co., 25 Va. App.
306, 311-12, 487 S.E.2d 878, 881 (1997) (when employee's range
in light duty is not equivalent to pre-injury duties, he is not
released to pre-injury capacity).
After his injury, the employee was released to light duty
with a 20 pound weight lifting restriction. 	He was never
released from that restriction and his pre-injury duties
required him to lift more than that. 	Much of a rigger's duties
involved lifting heavy equipment and wriggling it into place.
The chain falls weighed between 20 pounds for a one-ton chain
and 60 pounds for a five-ton chain fall. 	The chain weight
varied according to its length. 	The dollies weighed between 30
and 40 pounds, the rigger's tool bag weighed up to 100 pounds,
and the wooden boards used to build scaffolding weighed between
22 and 43 pounds.
Upon his release to light duty, the employee accepted
selective employment in the employer's rigging department as a
forklift operator on the docks. 	He ultimately expanded some of
his rigging duties both on the dock and on the ship. 	However,
the employee never resumed his full pre-injury abilities. 	He
was able to hook on, but usually required assistance because the
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chain falls were too heavy. 	He assisted others on the ship, but
was no longer directing their work because he could not do the
physical maneuvering required on the ship. 	He could not build
the scaffolding because the wooden boards were too heavy and he
could not climb in and out of the tanks.
Although the employee could do some of his pre-injury
duties, credible evidence supports the commission's decision
that he was not operating at pre-injury levels. 	Factual
findings made by the commission are binding, and the resolution
of conflicting medical opinion is a question of fact. 	On
appeal, our duty is to determine whether credible evidence
supports the commission's decision; if it does, we must affirm
that decision. 	See Celanese Fibers, 229 Va. at 120, 326 S.E.2d
at 690. 	The commission did not err in finding the employee had
not been released to pre-injury employment and was unable to
fully perform his prior duties.
The employer's reliance on Vega Precision Lab., Inc. v.
Jwayyed, 218 Va. 1026, 243 S.E.2d 228 (1978), is misplaced. 	In
Vega, the commission found that because the employee could
perform his pre-injury work he was not entitled to benefits when
the job no longer existed. 	Here, the employee was never
released to pre-injury work, and the record supports the
commission's finding that he could not do that work.
Finally, we consider whether the employee's layoff from
selective employment, due to the employer's loss of Navy ship
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repair work, precludes his award of benefits. 	Relying on Code
§ 65.2-500,2 the employer claims the employee was unable to work
because of a plant shut down and not because of a work-related
injury.
"[T]he employer is relieved of its duty to compensate the
claimant only if it offers the claimant employment in his or her
'pre-injury capacity' and the claimant has been released to
perform the work." 	Carr, 25 Va. App. at 312, 487 S.E.2d at 881
(disabled employee who accepted selective employment but
suffered wage loss because there was no opportunity for overtime
is still entitled to benefits). 	"The employer's financial
condition . . . do[es] not affect the claimant's right to
compensation due to an impaired capacity to perform his
pre-injury duties." 	Consolidated Stores Corp. v. Graham, 25 Va.
App. 133, 137, 486 S.E.2d 576, 578 (1997).
After an economic layoff from selective employment, an
employee remains entitled to benefits until he either fully
recovers and is released to pre-injury work, or until the
employer offers him other selective employment. 	See Washington
Metropolitan Transit Authority v. Harrison, 228 Va. 598, 600,
324 S.E.2d 654, 655 (1985) (benefits denied because employee
failed to prove he marketed his residual work capacity).
2 Code § 65.2-500 provides that "[w]hen the incapacity for
work resulting from the injury is total, the employer shall pay
or cause to be paid as hereinafter provided . . . ." 	(Emphasis
added).
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The employer's reasons for the layoff should not diminish
the employee's entitlement to benefits. 	The employee was
injured on the job and his capacity to work reduced. 	The
Workers' Compensation Act "is highly remedial and should be
liberally construed to advance its purpose . . . [of
compensating employees] for accidental injuries resulting from
the hazards of the employment." 	See Henderson v. Central Tel.
Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987) (citations
omitted). 	Until the employee can perform at his pre-injury
capacity, he is protected from the economic vicissitudes of the
market place. 	We conclude the employee's layoff due to the
employer's economic downturn does not preclude his entitlement
to disability benefits.
Accordingly, the commission's award of benefits is
affirmed.
Affirmed.
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