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Donovan v. United Parcel Service, Inc.

Court of Appeals of Virginia

May 27, 2014

WILLARD FRANCIS DONOVAN, III
v.
UNITED PARCEL SERVICE, INC. AND LIBERTY INSURANCE CORPORATION

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

Philip B. Baker (Sanzone & Baker, L.L.P., on brief), for appellant.

Patricia C. Arrighi (PennStuart, on brief), for appellee.

Present: Chief Judge Felton, Judges Alston and Chafin. OPINION BY JUDGE ROSSIE D. ALSTON, JR.

OPINION

Page 100

[63 Va.App. 440] ROSSIE D. ALSTON, JR., JUDGE.

Willard Donovan (claimant) appeals from an order of the Workers' Compensation Commission (the commission) denying his request for resumption of temporary total disability benefits. On appeal, claimant contends that the commission erred by 1) giving weight to the opinion of Dr. Stutesman, 2) finding that claimant was on a restricted work status between January 7, 2010 and February 28, 2010, 3) holding that claimant failed to adequately market his residual work capacity between March 23, 2010 and April 12, 2010, and 4) finding that claimant could perform light-duty work after April 13, 2010. Because we conclude that the evidence supports the commission's findings, we affirm.

I. Background

On appeal from the commission, we view the evidence in the light most favorable to United Parcel Service (employer), the party prevailing below. Tomes v. James City Fire, 39 Va.App. 424, 429-30, 573 S.E.2d 312, 315 (2002) (citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788, 6 Va. Law Rep. 1997 (1990)).

Claimant, a delivery driver for employer, injured his left arm when he fell at work. Employer accepted claimant's injury as compensable, and the parties agreed to an award of temporary total disability benefits. The commission subsequently terminated that award when claimant returned to his pre-injury employment. A supplemental award for temporary total disability benefits was entered on September 4, 2009.

By October, claimant was again showing improvement. Claimant's treating physician, Dr. Gautham Gondi, assessed claimant on October 21, 2009 with left shoulder impingement [63 Va.App. 441] syndrome and status post left wrist fracture and recommended that claimant continue his " work hardening [program] and progress to a home exercise program." Later that month, Dr. Andrea Stutesman prepared a work hardening report in which she released claimant to return to work. According to Dr. Stutesman's work hardening report, " [Claimant] achieved a 70 lb lift and carry without significant stress or increase of pain to the upper left extremity," and claimant stated that he was " confident that he [could] return to work with[in] [employer's] lifting requirement."

Claimant returned to his pre-injury employment on November 16, 2009.[1] His return was short-lived. For reasons unrelated to this appeal, claimant was suspended from his employment on December 1, 2009. He has not returned to his employment since.

On January 6, 2010, claimant sought medical treatment from Dr. Gondi for left wrist and shoulder pain. Dr. Gondi diagnosed claimant with left shoulder impingement syndrome, a partial thickness rotator cuff tear to the left shoulder, and a prior left wrist fracture. Dr. Gondi released claimant from work pending a follow-up examination scheduled for February 26, 2010.

Prior to his follow-up, claimant underwent an independent medical examination with Dr. Richard Wilson. Dr. Wilson addressed his findings in ...


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