Castueil v. Dulles Marriott Hotel New Hampshire Insurance Co., 060721 VAWC, VA00001627050

Case DateJune 07, 2021
CourtVirginia
DIDIER CASTUEIL
v.
DULLES MARRIOTT HOTEL NEW HAMPSHIRE INSURANCE COMPANY, Insurance Carrier MARRIOTT INTERNATIONAL, Claim
Administrator Jurisdiction Claim No. VA00001627050
Virginia in the Workers' Compensation Commission
June 7, 2021
          Date of Injury: July 19, 2019          Claim Administrator File No. 687459           Andrew S. Kasmer, Esquire For the Claimant.           Nicholas P. Marrone, Esquire For the Defendants.           RAPAPORT Commissioner          REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          Both parties request review of the Deputy Commissioner's October 9, 2020 Amended Opinion.l We AFFIRM in part, REVERSE in part and MODIFY the Award below.          I. Material Proceedings          The claimant injured his head, back, neck and both shoulders on July 19, 2019. After an evidentiary hearing, a Deputy Commissioner issued an April 1, 2020 Opinion[2] finding a compensable injury arising out of the employment. She awarded temporary total disability benefits from July 23, 2019 through October 28, 2019 and temporary partial disability benefits from October 29, 2019 and continuing.          The claimant filed a March 30, 2020 claim seeking temporary total disability benefits from March 25, 2020 and continuing. He included a work status form dated January 29, 2020 detailing his light duty restrictions and a March 20, 2020 letter from the employer which stated he would be on an unpaid leave of absence effective March 21, 2020.          An April 3,2020 Employer's Application for Hearing alleged the claimant's wage loss was unrelated to his compensable injury because he was laid off in a companywide furlough. The Commission rejected the application on April 21, 2020. The defendants did not request review.          In May 2020, the Commission set a September 3, 2020 evidentiary hearing on the March 30, 2020 claim. The claimant filed a June 11, 2020 Request for Hearing again seeking temporary total disability benefits beginning March 25, 2020, as well as an authorization for a lumbar MRI scan. A June 12, 2020 letter informed the parties the June 11, 2020 claim would be addressed at the September 3, 2020 hearing.          The defendants filed an August 24, 2020 Employer's Application for Hearing. It alleged the claimant was released to return to pre-injury work on August 10, 2020 and his disability was unrelated to the accident based on Dr. Pateder's attached August 10, 2020 report. It sought a credit of $2,370.52 due to overpayment of compensation from July 18, 2020 through August 14, 2020. The defendants asked for their application to be heard on September 3, 2020.          On August 25, 2020, the Deputy Commissioner wrote to counsel:
Pursuant to the teleconference held this afternoon in regard to the above noted matter, please be advised that the issues of whether the claimant remains disabled (partially or totally) and whether the claimant is able to return to pre-injury employment will be addressed at the time of the September 3, 2020 hearing.
Pursuant to the parties' agreement, the issue of the defendants' request for a credit due to an overpayment will also be addressed.
         The defendants moved to withdraw the August 24, 2020 application through August 25, 2020 correspondence. The insurer agreed to reinstate temporary partial disability at that time.          At the September 3, 2020 hearing, the Deputy Commissioner heard testimony from the claimant, the general manager of the employer, Keith McNeill, and the hotel's human resources director, Rosibel (Rosie) Irwin. He admitted medical designations and exhibits from both parties. The claimant offered job search logs beginning March 23, 2020 and August 28, 2020 and a memo from Keith McNeill dated May 29, 2020. The defendants submitted Keith McNeill's March 20, 2020 letter to the claimant and Rosie Irwin's May 29, 2020 letter to the claimant.          The defendants asserted there was no causal connection between the claimant's disability and an injury on July 19, 2019. They denied the medical records supported the period of disability claimed and asserted the claimant was not disabled to the extent alleged. They argued the claimant's wage loss was not due to partial disability because there was a companywide layoff for the period March 21, 2020 through October 2, 2020. The defendants requested credit for an overpayment of compensation.          First, the Deputy Commissioner rejected the claimant's contention that he was laid off due to his partial disability. He found "the true cause for the claimant's layoff was the impact of the COVID-19 health crisis on the employer's business." (Op. 10-11.) He also concluded the claimant was not temporarily totally disabled from June 3, 2020 through July 1, 2020. The greater weight of the medical evidence suggested the claimant remained temporarily partially disabled.          Based on King William County v. Jones, 66 Va.App. 531 (2016), the Deputy Commissioner held the claimant did not prove he could not market his residual work capacity due to his disability from March 23, 2020 through June 3, 2020. He stated "the claimant failed to present evidence that his injuries rendered him unfit to perform the positions he sought through his marketing efforts, or that he was not hired because of his disability." (Op. 14 (Emphasis in original.)). He found the claimant failed to prove entitlement to disability benefits from March 23, 2020 through July 1, 2020. The Opinion denied the claimant's request for temporary total disability benefits and terminated the temporary partial disability award effective March 25,2020.3          The Deputy Commissioner found the claimant was temporarily and totally disabled beginning July 2, 2020. He awarded temporary total disability benefits from July 1, 2020[4] through August 26, 2020. He relied upon the claimant's report of increased pain, the lumbar MRI results and Dr. Malek's recommendations that the claimant see Dr. Sabet and remain off work. The Deputy Commissioner awarded the defendants a credit to the extent compensation was paid for the awarded period of July 1, 20205 through August 26, 2020.          The Deputy Commissioner found Dr. Malek released the claimant to light duty on August 27, 2020. He denied temporary partial disability beginning August 27, 2020 based on Jones6          The claimant requests review. He argues the Deputy Commissioner lacked jurisdiction to terminate the temporary partial disability award, and if he denied temporary total disability benefits, the temporary partial disability award would remain in place. He asserts the Deputy Commissioner erred in his application of the economic loss rule and should have awarded temporary total disability benefits based on the claimant's inability to return to pre-injury work and adequate marketing. He assigns error to the denial of temporary total disability benefits from June 3, 2020 and continuing, given Dr. Malek's opinion the claimant was incapable of working from that date. He argues the Deputy Commissioner erred in failing to award temporary total disability benefits after September 3, 2020 based on Dr. Sabet's opinion the claimant should remain off work until after an FCE.          The defendants request review of the credit. They sought a credit for compensation paid from March 25, 2020 through June 30, 2020 and August 27, 2020 through October 5, 2020 against the July 1, 2020 through August 26, 2020 temporary total disability award.          II. Summary of Evidence          Before the accident, the claimant worked for twelve years as a bartender for the employer. His eight- to nine-hour shifts required him constantly to work on his feet. His duties included serving food and drinks to customers and maintaining alcohol inventory. He shouldered trays of food which weighed 25 to 35 pounds, lifted cases of beer and wine and changed beer kegs. His pre-injury job could require him to lift, push, pull and carry up to 50 pounds.          The claimant slipped and fell while carrying a large tray of food on July 19, 2019. After the accident, he treated at Reston Hospital. He then came under the care of Dr. Vandana R. Sharma for a concussion and Dr. Mehrdad M. Malek for his neck, back and shoulders.          The claimant was completely out of work through October 28, 2019. He testified his back, neck and shoulders improved with rest. When he returned to light duty work at the end of October 2019, he was restricted from lifting more than 15 pounds, bending or stooping and working...

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