ROBERT WILLIAMS
v.
HARRIS MID-ATLANTIC LLC - VA ACIG ACIG INS CO, Insurance Carrier
TRISTAR RISK ENTERPRISE MANAGEMENT, Claim Administrator Jurisdiction
Jurisdiction Claim Nos. VA02000034580,VA00001734115
Virginia Workers Compensation
Virginia In The Workers' Compensation Commission
June 16, 2021
Date
of Injury March 9, 2020, March 27, 2020
Claim
Administrator File Nos. 20817282, 20816400
Matthew Peffer, Esquire For the Claimant.
Nirav
Patel, Esquire For the Defendants.
REVIEW
on the record by Commissioner Marshall, Commissioner Newman,
and Commissioner Rapaport at Richmond, Virginia.
OPINION
MARSHALL COMMISSIONER
Both
parties request review of a January 25, 2021 Opinion. The
claimant assigns error to the finding he did not sustain a
compensable injury by accident to his neck and right shoulder
on March 9, 2020. The defendants allege the Deputy
Commissioner erred in finding the employer had notice of the
March 27, 2020 left knee injury.[1] We AFFIRM.
I.
Material Proceedings
The
claimant's May 18, 2020 claim alleged an injury by
accident to his right shoulder and neck on March 9, 2020.
(JCN VA02000034580). His May 27, 2020 claim alleged a
compensable left knee injury on March 27, 2020. (JCN
VA00001734115) Both claims requested a medical award and
requested that the Commission retain jurisdiction over a
future claim for permanency.
The
defendants raised identical defenses to both claims. They
denied the claimant sustained injuries by accident arising
out of and in the course of his employment. They asserted his
injuries were not causally related to an accident. They
alleged they first received notice when the claimant filed
his claims on May 18, 2020 and May 27, 2020.
The
Deputy Commissioner considered testimony from the claimant
and two defense witnesses, Rodney Smith, the site
superintendent, and Douglas Moreno, a foreman. He admitted
medical designations from both parties, the defendants'
designations of the claimant's discovery
depositions,[2] and the claimant's discovery
responses.
The
Deputy Commissioner denied the claim for a March 9, 2020
injury. He found the preponderance of the evidence
established the claimant's right shoulder and neck injury
resulted from the cumulative effects of repetitive work
activity, cranking a duct jack, for seven and a half hours on
March 9, 2020. He found this activity did not constitute one
piece of work. Therefore, the claimant did not prove an
injury by accident arising out of his employment on March 9,
2020.
The
Deputy Commissioner found the March 27, 2020 accident was
compensable. He ruled the evidence preponderated that the
claimant struck and injured his left knee on a damper. He
credited the claimant's testimony that he notified
Douglas Moreno, a foreman, of his injury before he left work
on the day it occurred. Mr. Moreno denied the claimant ever
told him about the knee injury, but he testified he later
heard about the knee injury from coworkers. He determined the
employer had actual knowledge of the accident on the day it
occurred or within a reasonable time thereafter. He relied on
Mr. Moreno's acknowledgement that he overheard other
employees talking about the claimant's injury. The Deputy
Commissioner also determined the defendants had not
established any prejudice due to any defect in the notice of
injury given by the claimant.[3]
The
claimant requests review of the denial of the March 9, 2020
injury claim. He asserts the Deputy Commissioner...
