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Ewc Construction v. Payne3/12/1996
MEMORANDUM OPINION* BY JUDGE ROSEMARIE ANNUNZIATA
On September 7, 1993, Kenneth Payne ("claimant") suffered an accidental injury arising out of and in the course of his employment with EWC Construction ("employer"). Employer accepted claimant's claim as compensable and paid him benefits for total incapacity from September 14 through September 29, 1993 pursuant to an award entered February 11, 1994. On December 1, 1994, claimant filed an application for hearing alleging a change in condition and seeking reinstatement of compensation for total incapacity beginning April 15, 1994. The deputy commissioner entered an award for claimant which the full commission affirmed. On appeal, employer contends the commission erred in concluding that claimant was not required to prove that he had reasonably marketed his residual work capacity. We disagree, and, for the reasons that follow, affirm.
BACKGROUND
Claimant worked as a bricklayer for twenty-two years. On September 7, 1993, he suffered a back injury while working for employer. Claimant received treatment from Dr. W. Bartley Hosick who ordered claimant not to work for two or three weeks. Employer accepted claimant's claim as compensable and paid him benefits for total incapacity from September 14 through September 29, 1993 pursuant to an award entered February 11, 1994. Claimant returned to work for employer, but he could work only part-time due to his back pain.
Claimant continued to see Dr. Hosick who noted claimant's continuing symptoms which were unexplained by an early 1994 bone scan. Dr. Hosick eventually diagnosed claimant's condition as a chronic lumbar strain. Because of claimant's symptoms and Dr. Hosick's belief that claimant suffered a significant muscular ligamentous injury to the lower back, Dr. Hosick ordered claimant to stop working in mid-April 1994 and referred him to a work hardening program. At that time, employer began paying claimant compensation for his total incapacity to work. However, employer failed to file a memorandum of agreement reflecting its payments.
Claimant's work hardening continued from April 15 to May 27, 1994 but was discontinued because claimant's condition failed to improve. An MRI conducted at that time failed to identify the source of claimant's continuing problem. Dr. Hosick referred claimant to a spine specialist for evaluation and recommended that claimant return to work on "a limited capacity" basis if the spine specialist found no further treatment was necessary.
Dr. Neal Kahanovitz evaluated claimant on July 25, 1994 and found no neurological or structural abnormalities. Concluding that no further treatment was indicated, Dr. Kahanovitz found that claimant could return to work on a "medium lifting capacity" basis. Claimant did not return to work. However, employer continued paying him total incapacity benefits until October 7, 1994.
After employer ceased paying benefits, claimant filed an application alleging a change in condition beginning April 15, 1994, the day on which he stopped working. The deputy commissioner found that employer had accepted claimant's change in condition when it reinstated benefits in April 1994. Because employer continued to pay claimant benefits without filing a supplemental memorandum of agreement, the deputy commissioner, applying National Linen Service v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987), placed the burden of proving a subsequent change in condition on employer. The deputy commissioner concluded that employer, who did not appear at the hearing, had not shown such a change in condition and awarded claimant total incapacity benefits commencing April 15, 1994. The full commission affirmed, fi
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