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, 2020
5 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
Jones
6
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...