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Dollar Tree Stores, Inc. v. Tefft

Court of Appeals of Virginia

June 5, 2018

DOLLAR TREE STORES, INC. AND ARCH INSURANCE COMPANY
v.
KATHLEEN TEFFT

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Audrey Marcello (Matthew J. Moynihan; Taylor Walker, P.C., on brief), for appellants.

          Philip J. Geib (Philip J. Geib, P.C., on brief), for appellee.

          Present: Judges Russell, AtLee and Malveaux Argued at Norfolk, Virginia

          OPINION

          MARY BENNETT MALVEAUX, JUDGE

         Dollar Tree Stores, Inc. ("employer") appeals a decision of the Workers' Compensation Commission ("the Commission") awarding benefits to Kathleen Tefft ("claimant"). On appeal, employer argues that the Commission erred in finding that the composition of the review panel did not violate Code §§ 65.2-200(D) and -705(D). Employer further contends that the Commission erred in finding that claimant adequately marketed her residual work capacity. For the following reasons, we affirm the decision of the Commission.

         I. BACKGROUND

         On appeal, "[w]e view the evidence in the light most favorable to the prevailing party below, and '[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding.'" Va. Polytechnic Inst. v. Posada, 47 Va.App. 150, 158, 622 S.E.2d 762, 766 (2005) (second alteration in original) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va.App. 227, 229, 409 S.E.2d 824, 826 (1991)).

         Claimant was employed as an assistant freight manager at one of employer's stores. On March 31, 2015, claimant was unloading a truck when the driver of the truck "slammed . . . down" fifteen or twenty cases of freight on her. Claimant's arms were "yanked on both shoulders." After the incident, claimant experienced pain in her neck, shoulders, and arms.

         On April 27, 2015, claimant was treated by Dr. Timothy Budorick, who placed her on work restrictions, including no unloading of trucks or lifting over ten pounds. On May 21, 2015, claimant was treated by Dr. Lawrence Donato, who imposed the same weight lifting restrictions. Dr. Donato also prohibited any overhead lifting. On July 21, 2015, Dr. Donato performed surgery on claimant's right shoulder. After her surgery, claimant was released to light-duty work on September 21, 2015, under certain work restrictions: no overhead lifting, no repetitive activity, no lifting of more than seven pounds, and sedentary work only. Following a November 18, 2015 appointment, Dr. Donato continued these same restrictions with a modified limit of lifting no more than five pounds. On December 17, 2015, he continued the same restrictions. At no point was employer able to accommodate claimant's restrictions.

         Claimant started actively looking for a job within her restrictions on November 13, 2015. Claimant's educational background consisted of a high school education. She had previously worked as an assistant manager of a fast-food restaurant. Claimant initially looked for jobs from postings on the "Virginia [C]ommission site."[1] She could not find any jobs on that website so she "started just going to random places" online. The majority of her search was online. She applied for customer service and loss prevention jobs because they did not involve lifting, and were more just "walk[ing] around."

         From November 2015 through the beginning of June 2016, claimant primarily applied for jobs with the Sears Corporation, including jobs at both Sears and K-Mart stores. Claimant testified that during this period she was told she had to apply for five jobs a week, and when there were not that many jobs available with Sears, she applied to other employers to get to five jobs. During this time, claimant applied to about twenty different employers other than Sears, with the majority of these applications submitted during the first two months of claimant's job search. The rest of the time, claimant applied for five jobs a week with Sears. Those jobs had a variety of position titles, and all had individual position numbers. Claimant testified that she did not apply to different employers during this time because, while all of the jobs were with Sears, she was applying to work in different stores. Further, because of her restrictions, there were not many suitable jobs for her. In December 2015, claimant went to one interview for a loss prevention job, but did not hear anything following the interview.

         From the end of June through October 2016, claimant applied for five jobs a week exclusively at SuperValu stores.[2] The record reflects that these jobs had a variety of position titles and that all had individual position numbers. Claimant testified that these jobs were located in different SuperValu stores, and some were in Starbucks locations inside the stores. Claimant never received an interview for any SuperValu position.

         On September 11, 2015, claimant filed a claim seeking medical benefits and temporary total disability benefits beginning April 27, 2015 and continuing. The parties stipulated that claimant was entitled to a medical award for an injury to her right shoulder and an award of temporary total disability benefits for the period of July 21, 2015 through September 21, 2015. Employer defended on several grounds, one of which was that claimant failed to market her residual work capacity.

         On January 4, 2017, the deputy commissioner issued an opinion awarding claimant temporary total disability benefits for the periods of July 21, 2015 through September 21, 2015 and November 13, 2015 and continuing. The deputy commissioner found that claimant had proven that she suffered compensable injuries to both shoulders and her cervical spine, in addition to the right shoulder injury stipulated by employer. However, the deputy commissioner found that claimant only marketed her residual work capacity from November 13, 2015 ...


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