REBECCA B. HERRERA
v.
CAPITOL POLICE COMMONWEALTH OF VIRGINIA, Insurance Carrier YORK RISK SERVICES GROUP, Claim Administrator Jurisdiction
Claim No. VA00001213238
Virginia Workers Compensation
Virginia In The Workers' Compensation Commission
June 22, 2021
Date
of Injury: June 15, 2016
Claim
Administrator File No. 6241218
Bradford E. Goodwin, Esquire For the Claimant.
Scott
J. Fitzgerald, Esquire For the Defendant.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
NEWMAN
COMMISSIONER
The
employer requests review of the February 9, 2021 Opinion.
Error is assigned to the Deputy Commissioner's denial of
the employer's application seeking to terminate the award
of temporary partial disability. We AFFIRM.
I.
Material Proceedings
The
claimant sustained a compensable back injury on June 15, 2016
for which awards were entered for various periods of
disability. The subject of this review is the award of
temporary partial disability based upon the claimant's
work in a light duty position offered by the employer. The
employer's December 19, 2019 Application sought
termination of that award contending that a November 22, 2019
surgery and associated disability were causally unrelated to
the claimant's compensable injuries. Attached to the
application was an email from the claimant advising of the
November 22, 2019 surgical procedure unrelated to her
compensable back injury and for which she would be unable to
work for roughly twelve to fourteen weeks.[1]
The
Deputy Commissioner denied the employer's application,
noting that the claimant remained partially disabled due to
her compensable injury. The Deputy Commissioner declined to
consider whether the claimant had refused selective
employment, finding the employer had not raised this
allegation in its application. To these findings, the
employer requests review.[2]
II.
Findings of Fact and Rulings of Law
Before
her accident, the claimant, a police sergeant, suffered from
a non-disabling kidney condition. After sustaining her June
15, 2016 back injury, she was assigned light duty work
restrictions which were accommodated by the employer. Based
upon her earnings, an award was entered for the payment of
temporary partial disability. On November 21, 2019, the
claimant sent the following email to Jamie Whitley at DCP:
"Tomorrow, November 22, 2019,1 will be having a medical
procedure. This procedure is unrelated to my back injury. I
am expected to be out of the office for roughly 12-14
weeks." On the strength of this email, the employer
filed its December 19, 2019 application seeking to terminate
the temporary partial award, contending the claimant's
disability and the November 22, 2019 surgery were unrelated
to her compensable back injury.
A.
Disability Unrelated to Accident
The
employer contends that the claimant's disability from her
unrelated kidney disease warrants termination of the existing
temporary partial award, citing Carrington v. Aquatic
Co., 297 Va. 520 (2019).[3] In Carrington, the
claimant suffered from preexisting kidney disease that was
not disabling. He then sustained a work-related left arm
injury which rendered him partially disabled. While he was
working selective employment with the employer, Carrington
required surgery for his preexisting kidney disease, thus
rendering him totally disabled.
At
issue in Carrington was the claimant's
application seeking temporary total disability while out of
work for his kidney surgery. He advanced disability
entitlement citing the two causes rule, a rule that
"applies when 'a disability has two causes: one
related to the employment and one unrelated,' and thus,
'[w]hen it is proven that the employment is a
contributing factor to the disability, full benefits will be...
