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Falls Church Construction Corp. v. Valle12/12/1995
OPINION BY JUDGE LARRY G. ELDER
Falls Church Construction Corporation, the statutory employer, and West American Insurance Company, its insurer, appeal the commission's award of benefits to Raphael Valle (claimant) for a work-related injury by accident. Falls Church Construction contends: (1) claimant's immediate employer was not uninsured and therefore the immediate employer's insurer, the Maryland Injured Workers' Insurance Fund, should have been added as a party to the proceedings; (2) claimant did not establish an injury by accident; (3) claimant did not adequately market his residual work capacity; and (4) claimant obstructed medical treatment. Finding no error, we affirm the commission's decision.
I.
FACTS
The commission awarded claimant benefits for an injury by accident arising out of and in the course of his employment with American Inner Wall, Inc., claimant's immediate employer.
American Inner Wall is a subcontractor of Falls Church Construction. Claimant commenced work with American Inner Wall in 1987, performing duties as a carpenter and a foreman. American Inner Wall hired claimant in Maryland, and he initially worked only in that state. On June 23, 1993, the date of claimant's injury by accident, American Inner Wall possessed a workers' compensation policy issued by the Maryland Injured Workers' Insurance Fund (Maryland Fund), which American Inner Wall believed insured its employees who temporarily worked in other states. Falls Church Construction required American Inner Wall to maintain such a policy pursuant to the contractor/subcontractor agreement it reached with American Inner Wall.
On June 23, 1993, claimant performed carpentry duties on a four to five foot high scaffold at an elementary school in Herndon, Virginia. While screwing wire mesh into the ceiling, claimant attempted to prevent himself from falling off the scaffold by springing forward to grab a column. As he did so, he felt a snap in his back and a burning sensation. Claimant promptly reported the injury to his foreman and received permission to seek medical treatment. Claimant received emergency room treatment within twenty minutes at Access of Reston/Fairfax Hospital and later at Fairfax Hospital. The examining physician diagnosed acute back strain and prescribed medication and rest for two days with restriction to light activities.
The following day, claimant returned to work medicated with an over-the-counter aspirin, and he presented the foreman with a disability slip detailing his work restrictions. The foreman told claimant "just to lay back," yet claimant performed work duties for five and one-half hours. A coworker testified that claimant performed regular duties without complaint or difficulty. Witnesses observed claimant shooting basketball for approximately fifteen to twenty minutes during a work break.
On June 30, 1993, Dr. Denis O'Brien examined claimant and diagnosed degenerative disc disease at the L5-S1 disc with
lumbar radiculopathy. On August 4, 1993, Dr. O'Brien offered a diagnosis of a herniated disc at the L5-S1 disc and opined that the symptoms were directly related to claimant's work injury.
On January 20, 1994, claimant was released to light duty work status, but he continued to complain of pain. Claimant applied for unemployment benefits in Maryland, which he received for twenty-six weeks. Claimant supplied the Maryland Employment Commission with lists of job contacts he made, and he testified as to the jobs he applied for from March t
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