KEVIN NOBLE-DAMITZ
v.
NATIONAL MEMORIAL PARK OLD REPUBLIC INS CO, Insurance Carrier
GALLAGHER BASSETT SERVICES INC, Claim Administrator
Jurisdiction Claim No. VA00001619150
Claim Administrator No. 000731037692WC01
Virginia Workers’ Compensation
Virginia In The Workers’ Compensation Commission
March 23, 2021
Date
of Injury: June 22, 2019
Diane
C.H. McNamara, Esquire For the Claimant.
Adam
S. Rafal, Esquire For the Defendants.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
NEWMAN
Commissioner
Both
parties request review of the Deputy Commissioner’s
October 26, 2020 Amended Opinion finding the claimant
sustained compensable injuries by accident and awarding
temporary total disability. The defendants argue the claimant
did not suffer an injury by accident. Alternatively, they
contest his disability entitlement, contending his marketing
was inadequate. The claimant excepts to the calculation of
his pre-injury, average weekly wage. We AFFIRM the Opinion
and MODIFY the Award.
I.
Material Proceedings
The
claimant alleges having sustained injuries to his low back,
right shoulder, and right arm in a June 22, 2019 accident. In
addition to medical benefits, he seeks temporary total
disability
beginning
June 23, 2019. The claim was defended on the grounds the
claimant did not sustain injuries arising out of the
employment and that he failed to market his residual work
capacity.
The
Deputy Commissioner rejected the defendants’ contests
to the occurrence of an accident and the reasonableness of
the claimant’s marketing and awarded temporary total
disability beginning June 23, 2019. She calculated the
claimant’s pre-injury average weekly wage at $603.34
with a corresponding weekly compensation rate of $420.23.
Both
parties request review.
II.
Findings of Fact and Rulings of Law
The
claimant was employed as a removal technician, a job that
required him to retrieve caskets containing human remains
from funeral homes and mortuaries and deliver them to the
cemetery. The caskets weighed between two-hundred-fifty and
four-hundred pounds, and the claimant moved them with the
assistance of a coworker.
The
claimant and Jay, his dispatcher and supervisor, were moving
a casket out of an oversized van on June 22, 2019. The
claimant testified that Jay pulled the casket out of the van
more quickly than did he, causing the greater weight of the
casket to shift to the right side of the claimant’s
body. The claimant twisted and felt a sharp pain in his back,
a strong pull in his shoulder, pain radiating down his leg,
and numbness in his right foot. The claimant told Jay that he
had hurt himself and went outside in an effort to walk off
the injury. However, his pain increased and he told Jay that
he needed to go home for the day. On Jay’s
recommendation, the claimant called Karen Butler, his
manager, and stated that he hurt himself while moving a
casket from the van and that he needed to go home. Ms. Butler
agreed and the claimant left work for the day.
The
claimant was scheduled to work the following day, but he
continued to feel pain and felt unable to do so. He called
Jay and Ms. Butler, stating that he could not work. The
claimant was next scheduled to work on Tuesday, June 25,
2019, but he was still in pain. The claimant went to Ms.
Butler’s office and stated that he needed to see a
doctor. She agreed and told the claimant to go to one of the
employer’s in-network providers.
The
claimant testified that he went to Patient First and reported
injuries to his back and right shoulder. However, the
physicians focused on his back complaints and did not examine
his shoulder. The claimant later became aware that the
patient history contained the wrong accident date. He advised
Patient First of this error and they subsequently corrected
the accident date from June 11, 2019 to June 22, 2019.
Patient
First diagnosed the claimant with a strain of the lumbar
ligaments and placed him on light duty with no
lifting/carrying, climbing, or pushing/pulling. The claimant
informed Ms. Butler of his work restrictions, but was told no
light duty work was available. Patient First continued the
claimant’s work restrictions after a July 1, 2019
appointment and he began looking for selective employment
through internet sites and job boards.
During
cross-examination, the claimant stated that he called Ms.
Butler on June 22 and June 23, 2019, and told her that he
hurt his back while moving a casket. He testified that on
June 25, 2019 he informed Ms. Butler in person that he needed
to go to the doctor as a result of the accident, and denied
advising her that his pain was caused by performing work over
a period of time.
Karen
Butler testified that the claimant called her on the
afternoon of June 22, 2019, stating that he had pain in his
hip and asking if he could go home to rest. She stated that
the claimant denied his injury was the result of a
“specific incident” and thought his pain may have
been the result of excessive lifting. On June 25, 2019, the
claimant called Ms. Butler while she was driving to work and
stated that he needed to visit the emergency room and submit
a workers’ compensation claim. She advised the claimant
to seek treatment with an in-network provider and that she
would call him later to enter his information into the...
