SUSPENSION OF BENEFITS

SUSPENSION OF BENEFITS TO DETERMINE IF ADDITIONAL INJURY NOT PREVIOUSLY CLAIMED IS CAUSALLY RELATED

United Parcel Service, Inc. v. Ilg, 679 S.E.2d 545, 54 Va. App. 366 (Va. App., 2009)

The Court of Appeals reversed the Commission’s denial of the employer’s application to suspend Claimant’s previously awarded benefits. Employer’s application included a doctor’s report stating that Claimant’s injury no longer prevented him from performing certain restricted work. The Commission denied the application because the same doctor opined that a medical condition affecting employee’s right hand prevented him from working in any capacity. At this time however, the Commission had not yet held a hearing on whether the injury to Claimant’s hand was causally related to the work-related injury.

Claimant sustained an injury on February 12, 2007 when he fell from a truck. When he filed a claim for benefits in April, 2007, he apparently wrote that the nature of his injury was to his right hand and right knee. The June 29, 2007 agreement to pay benefits stated as the injury, “Pain in Right Knee.” This agreement was filed with the Commission and an order was entered July 12, 2007 awarding lifetime medical benefits for treatment causally related to the February 12, 2007 injury.

In November, 2007, Claimant hired a lawyer who sent the Commission a letter, indicating that it was Claimant’s application for hearing and stated that the Claimant sustained injuries to his right hand, his right knee and his head. The attorney also requested copies of the employer’s accident reports, medical records and signed statements.

Dr. Peyton, Claimant’s treating physician, reported on February 26, 2008, that Claimant had work restrictions due to the knee injury. A second report by Dr. Peyton on the same day indicates that the “RtKnee/RtHand” injury leaves claimant unable to work in any capacity. Employer sought Claimant’s participation in vocational rehabilitation, which Claimant refused due to a total disability to his hand preventing him from working.

Employer filed an application for hearing in June, 2008, alleging Claimant failed to cooperate with vocational rehabilitation and included a copy of Dr. Peyton’s report releasing Claimant for restricted work. Claimant’s response included a copy of Dr. Peyton’s report stating he had a total disability because of his hand. The Employer’s application was denied and the senior claims examiner stated that Employer did not raise a causation issue in their application and that Claimant was totally disabled. The Commission, on review, stated that there was not enough probable cause that Claimant made an unjustified refusal of vocational rehabilitation based on Dr. Peyton’s report of Claimant’s total disability due to his hand injury.

Employer appealed, and the Court of Appeals agreed, that the Commission erred in denying the application for hearing because the original agreement did not indicate a hand injury, only an injury to Claimant’s right knee nor did the Employer produce evidence that the hand injury was not related to the work accident.

The Court of Appeals stated that the Claimant was released to restricted work based on the injury to his knee and the employer’s application for a hearing to suspend benefits should have been granted unless there was a finding that the hand injury was causally related.

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