Clinchfield Coal Company v Tommy B. Parrott

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Fitzpatrick and Overton
Argued at Salem, Virginia
CLINCHFIELD COAL COMPANY OPINION BY
v. 	Record No. 1876-95-3 	JUDGE JOHANNA L. FITZPATRICK
MAY 21, 1996
TOMMY B. PARROTT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ramesh Murthy (Penn, Stuart, Eskridge &
Jones, on briefs), for appellant.
Gerald F. Sharp (Browning, Lamie & Sharp, on
brief), for appellee.
In this workers' compensation case, Clinchfield Coal Company
(employer) appeals the commission's decision awarding benefits to
Tommy B. Parrott (claimant). 	Employer argues that the commission
erred in finding that claimant was unable to return to his pre-
injury employment. 	For the reasons that follow, we affirm the
commission.
On January 31, 1994, while working for employer, claimant
injured his back when he slipped on icy steps. 	Claimant's
primary work for employer was as a dryer operator. 	He performed
additional mechanical work as requested on an infrequent basis.
This usually occurred when he was scheduled to work on a Saturday
or when the dryer was not operating. 	Because claimant worked few
Saturdays and the plant was running at full production, claimant
worked as a dryer operator ninety percent of the time and
performed mechanical work ten percent of the time. 	Employer

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provided equipment such as chain falls and come-alongs1 to assist
employees performing mechanical work, but did not require its
employees to use this equipment. 	Employer was aware that
claimant and other mechanics normally performed their mechanical
duties by manually lifting heavy objects in excess of forty
pounds. 	Often, because of tightness of quarters, the mechanics
were unable to use the equipment provided by employer to assist
with the lifting and moving.
After his accident, claimant continued to work for employer
until April 13, 1994, when he was terminated for reasons
unrelated to his industrial accident. 	Employer recalled claimant
to work for three days in June 1994, but the mechanical work that
claimant performed during that period aggravated his back
condition. 	On June 13, 1994, claimant's treating physician, Dr.
Taylor D. Holliday, authorized his removal from the workplace.
On July 18, 1994, claimant's orthopedic doctor, Dr. Neal A.
Jewell, placed lifting restrictions on claimant--"40 pounds
occasionally and 10 pounds frequently"--and released claimant to
return to work effective July 25, 1994.
1A chain fall is similar to a differential pulley, which
consists of "a fixed upper double block with pulleys of different
diameters fixed together on the same axis, a movable single lower
pulley that carries the load, and an endless cable or chain that
passes around all the pulleys and hangs in a loop for operating
the mechanism which is used to achieve a very high mechanical
advantage." 	Webster's Third New International Dictionary 630
(1986). 	A come-along is "a gripping device (as for pulling in or
stretching wire) consisting of two jaws so attached to a ring that
they are closed by pulling the ring." 	Webster's Dictionary,
supra, at 453.

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The commission found that "the evidence in this case reveals
that the mechanical duties performed by claimant were incidental
to his employment with [employer] and that as a matter of course
he and others would manually lift in excess of forty pounds to
accomplish these duties." 	Additionally, the commission
determined that the fact "[t]hat these duties were infrequently
performed does not diminish the fact that they were expected to
be performed and that they were actually performed by manually
lifting in excess of the claimant's work restrictions."
Employer argues that the commission erred in finding that
claimant was unable to return to his pre-injury employment and
asserts that claimant was able to perform the essential functions
of his pre-injury employment by using the equipment provided by
employer.
On appeal, "we review the evidence in the light most
favorable to the prevailing party." 	R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"Factual findings of the . . . [c]ommission will be upheld on
appeal if supported by credible evidence." 	James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
In a workers' compensation case, "[t]he 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) (emphasis

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added) (quoting Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284
S.E.2d 605, 607 (1981)). 	The commission has held that, "[i]n
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 actually performed." 	Hester v. Country Club of Virginia,
Inc., VWC File No. 154-65-86 (May 10, 1994) (emphasis added). 	We
agree with the commission and hold that the normal and customary
manner in which the pre-injury work was performed governs the
determination of whether a claimant is able to return to that
employment.
In Hester, the claimant was an assistant manager at a
country club. 	She injured her back while working for the country
club, and her treating physician advised against heavy lifting.
Slip op. at 1-3. 	As an assistant manager, the claimant's
responsibilities included supervising the staff and helping them
set up tables, move chairs, and carry heavy trays and boxes. 	She
also unpacked and shelved boxes of liquor because staff members
were not allowed in the liquor room. 	Slip op. at 3-4. 	Examining
"how [the claimant's] duties were actually performed," the
commission found that, although staff members assisted the
claimant with heavy lifting, her "pre-injury job required her to
achieve results and this required her to perform physical labor
on occasion when the staffing was insufficient." 	Slip op. at 5.
Similarly, in the instant case, the evidence established

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that claimant's duties as a mechanic involved lifting in excess
of the restrictions imposed by his doctor. 	Thus, claimant was
unable to "fully perform" the duties of his pre-injury
employment. 	Although employer provided equipment that might aid
employees lifting heavy objects, claimant and other mechanics
often performed their mechanical duties by manually lifting these
objects rather than using employer's equipment. 	Employer was
aware that the mechanics did not always use the equipment, but
did not require its use. 	Additionally, due to the tightness of
the quarters where the work was to be performed, the mechanics
were often unable to use the equipment provided by employer.
Under these circumstances, credible evidence supports the
commission's finding that claimant was unable to return to his
pre-injury employment.
Accordingly, the decision of the commission is affirmed.
Affirmed.