TIRSA ZAPATA
v.
ROSS STORES, INC. ARCH INSURANCE COMPANY, Insurance Carrier
SEDGWICK CLAIMS MANAGEMENT SERVICES, INC, Claim Administrator
Jurisdiction Claim No. VA00000956215
Virginia Workers’ Compensation
In The Workers’ Compensation Commission
March 19, 2021
Date
of Injury July 2, 2014.
Claim
Administrator File No. B410006055000101100.
Tirsa
Zapata Claimant, pro se. 1
Megan
Kerwin Clark, 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
October 6, 2020 Opinion which denied her claims for permanent
partial disability. We AFFIRM.
I.
Material Proceedings
The
claimant injured her neck and back on July 2, 2014. The
defendants accepted her claim as compensable. She received
temporary total disability pursuant to awards from July 9,
2014 through August 21, 2014 and from March 15, 2017 through
May 23, 2017. An August 15, 2016 Stipulated Order established
that she sustained exacerbations of her original injuries on
December 14, 2015 and December 21, 2015. The parties also
agreed the claimant came under the care primarily of Patient
First, Nova Urgent Care, Dr. Schott, and Dr. Moshirfar.
The
claimant filed April 8, 2016, March 31, 2020 and April 21,
2020 claims seeking permanent partial disability. Based on an
evaluation by Merhdad Malek, M.D., she alleged permanent loss
of use of 12% to the left arm, 10% to the right arm, 10% to
the left leg, and 8% to the right leg. The claims were
initially referred for an on-the-record hearing.
The
defendants requested an evidentiary hearing, which was held
on September 11, 2020. The claimant was the only
witness.2 The defendants denied the claimant was
impaired to the extent alleged and asserted there was no
causal connection between the alleged permanent impairments
and the July 2, 2014 injury.
The
Deputy Commissioner concluded the claimant failed to meet her
burden to prove any permanent impairment causally related to
the July 2, 2014 accident. The claimant requests
review.3
II.
Findings of Fact and Rulings of Law
As the
party seeking benefits for permanent partial disability, the
claimant bore the burden of establishing the work-related
permanent loss. Hungerford Mech. Corp. v. Hobson, 11
Va.App. 675, 677 (1991). “The Commission, in
determining permanent partial disability benefits, must rate
claimant’s percentage of incapacity based on the
evidence presented to it.” Id. “Medical
evidence is not necessarily conclusive, but is subject to the
commission’s consideration and weighing.”
Farmington Country Club v. Marshall, 47 Va.App. 15,
26 (2005) (quoting Hobson, 11 Va.App. at
677). Moreover, if there is a difference of medical opinion,
it is within the Commission’s discretion to weigh the...
