DAVID HAILEY
v.
RODERICK LUCK CARPENTRY INC. BUILDERS MUTUAL INS CO, Insurance Carrier
BUILDERS MUTUAL INS CO, Claim Administrator
Jurisdiction Claim No. VA02000032660
Virginia Workers Compensation
Virginia In The Workers' Compensation Commission
June 22, 2021
Date
of Injury: May 10, 2019
Claim
Administrator File No. WCV001056442
Louis
D. Snesil, Esquire For the Claimant.
Michael L. Goff, Jr., Esquire For the Defendants.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
NEWMAN
Commissioner
The
claimant requests review of a Staff Attorney's referral
of a February 25, 2021 Employer's Application for Hearing
to the docket on April 7, 2021.[1] We AFFIRM as MODIFIED.
I.
Material Proceedings
While
working for the employer on May 10, 2019, the claimant
sustained a left ankle fracture and an LI compression
fracture. A December 5, 2019 Stipulated Order awarded medical
benefits and temporary total disability beginning May 10,
2019 and continuing.
A
February 25, 2021 Employer's Application for Hearing
sought termination/suspension of the outstanding award. It
alleged the claimant was released to light duty work as of
January 25, 2021, based on Dr. Seth Yarboro's January 25,
2021 endorsement of a January 13, 2021 Functional Capacity
Evaluation ("FCE"). The defendants also sought
termination/suspension due to the claimant's failure to
cooperate with a constructive refusal of vocational
rehabilitation. They submitted a February 23, 2021 letter
from claimant's counsel advising the claimant was
convicted of a crime and incarcerated beginning February 17,
2021. The defendants further contend the claimant's
indemnity benefits should be suspended due to his
incarceration as provided by Virginia Code § 65.2-510.1
and his alleged failure to immediately notify the carrier of
his incarceration as required by § 65.2-712. They sought
a credit for all benefits paid after February 16, 2021.
[2]
The
claimant responded to the application on March 12, 2021 and
argued probable cause did not exist to refer the claim to the
docket. He contended the application included no evidence the
employer offered vocational rehabilitation and there was no
evidence of a release to light duty as to all compensable
injuries.
The
Staff Attorney found probable cause existed for a hearing on
the merits and referred the application to the docket on
April 7, 2021. The claimant requests review.
II.
Findings of Fact and Rulings of Law
...
