ERICKA MOORE
v.
KROGER LIMITED PARTNERSHIP I KROGER CO. (THE), Insurance Carrier
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC, Claim Administrator
ERICKA MOORE
v.
KROGER LIMITED PARTNERSHIP I KROGER CO. (THE), Insurance Carrier
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC, Claim Administrator
Jurisdiction Claim Nos. VA00001442920, VA00001518266
Claim Administrator File Nos. B830007629000101300, B830042710000101300
Virginia Workers’ Compensation
Virginia In The Workers’ Compensation Commission
March 17, 2021
Date
of Injury February 13, 2018
Date
of Injury September 1, 2018
Ericka
Moore Claimant, pro se.
Emily
Pabalan, Esquire For the Defendants.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
MARSHALL Commissioner
The
claimant requests review of the Deputy Commissioner’s
April 1, 2020 Opinion.[1] She alleges the Deputy Commissioner
erred in denying additional disability benefits, a referral
to Dr. Glowacki, additional mileage reimbursement, and
additional payment to Virginia Commonwealth University
(“VCU”) regarding the February 13, 2018 accident.
The claimant asserts the Deputy Commissioner erred in finding
she failed to prove the September 1, 2018 fall was a
compensable injury by accident. We AFFIRM as MODIFIED.
I.
Material Proceedings
The
defendants accepted the claimant’s February 13, 2018
accident as compensable. The Commission issued a March 30,
2018 Medical Only Award for all casually related body parts.
(JCN VA00001442920). The claimant filed several
claims.[2] She proceeded with claims seeking
mileage reimbursement for 469.8 miles from June 25, 2018 to
November 1, 2018 and 714.4 miles from November 7, 2018 to
through September 5, 2019, temporary partial disability from
February 13, 2018 and continuing, and authorization to treat
with Dr. Glowacki on referral from Dr. Cotterell. She also
sought payment of medical bills to VCU.
The
Deputy Commissioner conducted hearings on all of the claims
on September 26, 2019 and November 20, 2019. She heard
testimony from the claimant; her 2018 supervisor, Sherrell
Kearney; Janet Fowler, adult beverage manager of the store;
Kim Perez, a store manager; and Carrie Fenn, manager of the
grocery store where the claimant worked.
The
defendants stipulated the claimant sustained a right wrist
contusion on February 13, 2018. They identified Dr. Cotterell
as the authorized treating physician. They agreed to be
responsible for Dr. Cotterell’s referral to Dr. Chapman
and for transportation, therapy or labs from these two
physicians, as long as the treatment was reasonable,
necessary and related to the right wrist contusion. They
stipulated the pre-injury wage was $320.28.
The
claimant did not agree that her right wrist injury was
limited to a contusion.
The
defendants denied the medical records supported the period of
disability claimed. They asserted the claimant was not
disabled to the extent alleged and she failed to market
residual work capacity. They denied a second opinion with Dr.
Glowacki was reasonable, necessary, authorized or ordered by
the treating physician. They asserted Dr. Cotterell had not
discharged or refused to treat the claimant. They denied the
mileage claim was related to the compensable injury.
The
claimant filed several other claims[3] which alleged a September
1, 2018 injury by accident to the right side of her face,
right wrist, right shoulder, the neck and both knees. She
sought a lifetime medical award, payment of medical bills,
authorization for surgery, payment for an MRI, temporary
total or temporary partial disability from September 1, 2018
and continuing, and authorization to treat with Dr. Glowacki.
The claimant requested the same mileage reimbursement as for
her earlier accident, some of which had been paid.
The
defendants denied the claimant sustained an injury by
accident arising out of and in the course of her employment
on September 1, 2018. They asserted there was no causal
relationship between the injury and the claimant’s
medical treatment or disability. They alleged the claimant
was not disabled or impaired to the extent alleged, the
medical records did not support the period of disability
alleged, the claimant failed to market her residual work
capacity, and an unjustified refusal of selective employment.
They asserted there was no proof of wage loss, the seven-day
waiting period of Va. Code §65.2-509 applied, and that
the claimant voluntarily removed herself from work. They
sought a credit for increased earnings in the
claimant’s second job. They denied the referral to Dr.
Glowacki was medically reasonable, necessary or causally
related to a compensable injury.
If the
Commission found a compensable injury on September 1, 2018,
the defendants stipulated to: contusion to right side of the
face, a right knee contusion, a left knee contusion and a
right wrist contusion. They alleged an average weekly wage of
$204.67.
The
Deputy Commissioner found the claimant proved entitlement to
temporary partial disability from February 13, 2018 through
February 25, 2018 and from April 16, 2018 through May 13,
2018 only. Although Dr. Chapman gave the claimant a modified
duty release on July 27, 2018, she assigned it little weight.
His treatment note from her visit the previous day mentioned
no limitations. The Deputy Commissioner found insufficient
evidence any work restrictions the claimant received after
July 27, 2018 were causally related to the February 13, 2018
accident.
The
Deputy Commissioner held Dr. Cotterell did not issue a valid
referral to Dr. Glowacki. She found Dr. Cotterell referred
the claimant to Dr. Glowacki at the claimant’s request
and not based on her medical evaluation and treatment.
Regarding
the request for mileage reimbursement from June 25, 2018
through November 1, 2018, the Deputy Commissioner found the
claimant entitled to reimbursement for doctor visits on June
25, 2018, July 26, 2018, September 20, 2018, October 16,
2018, and October 23, 2018, a total of 94 miles or $52.17 (94
miles x $.555). She denied mileage payment for physical
therapy visits, as no documentation was produced to the
defendants. She found no record of treatment on October 11,
2018 and unrelated treatment on October 30, 2018, which were
not the defendants’ responsibility. The parties
stipulated the defendants already paid $47.95, for which they
were due a credit. This left a balance due to the claimant of
$4.22.
For the
second period, November 7, 2018 through September 5, 2019,
the Deputy Commissioner found the claimant entitled to
mileage reimbursement for the December 4, 2018 visit with Dr.
Chapman. This trip was 18.8 miles x $.555 and totaled $10.43.
She found the defendants were not responsible for the
remaining 695.6 miles claimed. The mileage was either
unsupported by medical records, unrelated to the right wrist
contusion or for treatment with unauthorized physicians.
The
Deputy Commissioner found the claimant entitled to limited
payment of VCU bills. To the extent payment had not already
been made, she found the defendants responsible for the
following: the VCU bills reflecting treatment with or at the
direction of Dr. Cotterell on May 6, 2018, June 8 through
June 28, 2018, July 2 through July 30, 2018, July 26, 2018,
September 13, 2018, September 20, 2018, October 16, 2018, and
November 5, 2018. She found the remaining bills were for
unrelated and/or unauthorized treatment and not the
responsibility of the defendants.
The
Deputy Commissioner held the claimant failed to prove a
compensable injury on September 1, 2018. The claimant’s
hearing testimony was consistent with an account in the
medical records of the claimant tripping over a box at work.
The Deputy Commissioner found the medical evidence failed to
relate any injury to this accident. Although the claimant
complained of pain in her right wrist and both knees at St.
Mary’s Hospital on September 1, 2018, the...
