FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
W. David Falcon, Jr. (Chasen & Boscolo, P.C., on brief), for appellant.
Eric J. Berghold (McCandlish & Lillard, on brief), for appellees.
Present: Judges Humphreys, McCullough[*] and Senior Judge Haley.
[66 Va.App. 188] JAMES W. HALEY, JR.,
Charles Staton (" claimant" ) appeals the determination of the Workers' Compensation Commission (" the Commission" ) that his left knee injury was the expected result of his failure to follow medical advice, and therefore was not an injury by accident. Claimant argues that no credible evidence supports the Commission's decision that he was under any medical restrictions at the time of his accident. In the alternative, claimant contends that, even assuming that he was subject to medical restrictions, no credible evidence supports the Commission's finding that he intentionally violated those restrictions.
We agree with claimant. For the following reasons, we reverse the Commission's decision and remand the case to the Commission to enter judgment consistent with this holding.
On appeal from a decision of the Commission, we review the evidence in the light most favorable to The Brothers Signal Company and Commonwealth Contractors Group Self-Insurance Association (collectively " employer" ), the parties prevailing below. Lynchburg Foundry Co. v. Goad, 15 Va.App. 710, 712, 427 S.E.2d 215, 217, 9 Va. Law Rep. 875 (1993). So viewed, the evidence proved that claimant worked as a field superintendent for employer. In that capacity, he oversaw work crews, " laid out" the jobs, and dealt with contractors and the Virginia Department of Transportation. He also walked around the job sites.
Claimant began working for employer in November 2009. Kenneth Larsen, his supervisor and employer's general manager, had worked with claimant for a previous employer. In their prior jobs, claimant was a crew chief for Payne's Parking Designs, and Larsen was an assistant operations manager. Claimant had worked as a crew chief for approximately ten years when Larsen, who was then working for employer, approached him and hired him. Larsen was unaware of any restrictions on claimant's work duties. While Larsen noticed claimant " may have favored" his left leg " a little bit," his leg [66 Va.App. 189] " did not have any impact on his ability to do the job [he was] hired . . . to do."
On the morning of February 18, 2014, claimant and Larsen attended a meeting with the power company at a job site near Zion Crossroads. The job site involved changing all of the bridge ramps from Interstate 64 onto Route 15. The electrical supply for the signals and lighting was to be placed at the top of a hill, and after the meeting, claimant and Larsen walked down the hill together.
At the base of the hill was an excavated drainage ditch adjoining the road. When claimant and Larsen reached the bottom of the hill, they stepped together across a recently excavated drainage ditch onto the ten-foot wide shoulder between the ditch and the road. The shoulder was muddy, but had no visible holes. When claimant and Larsen stepped onto the mud, they both sank in the " quicksand" -like soil. Claimant, who stepped onto the shoulder with his left leg, sank in the mud fourteen to fifteen inches. He continued to go forward, but his leg did not come out, causing his knee to " buckle" and " hyperextend." Claimant " felt an extreme sharp pain and a pop." When claimant pulled his leg out of the soil and attempted to stand up, he fell back down again.
Larsen's leg also sank in the mud, but he pulled his leg out without injury. Larsen helped claimant get to claimant's truck, and claimant remained in the truck for the rest of the day. Claimant felt pain for the rest of the day whenever he attempted to walk and noticed his knee was " tight" and " swelling up."
Claimant went to the emergency room the following day. X-rays revealed " medial compartment narrowing," but no fracture. Two days later, on February 21, 2014, claimant followed up with his internist, Dr. Joseph David. Dr. David noted the knee was " swollen and a [sic] knot." While claimant could walk, his knee was " very painful" and claimant had increased his pain medications. Dr. David referred him to an orthopedic specialist, Dr. Kevin Peltier.
[66 Va.App. 190] When claimant saw Dr. Peltier on March 7, 2014, Dr. Peltier did not think he had torn his ACL, but based upon the x-rays taken on February 19, 2014, Dr. Peltier noted he had " essentially bone-on-bone osteoarthritis of the medial compartment, with joint space narrowing of the lateral compartment, and spurring . . . ." Dr. Peltier concluded that the injury to his left knee had " exacerbated his osteoarthritis" and that he had " endstage osteoarthritis." Dr. Peltier did not think claimant would be a good candidate for surgery other than total knee replacement.
Dr. Peltier did not impose any work restrictions on claimant. Instead, he noted, " He is a supervisor and is in his truck a lot, he has been doing his regular job, and he can continue with his work." Dr. Peltier gave claimant a ...