Ford Motor Co. v. Hunt

                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


FORD MOTOR COMPANY
                                                OPINION BY
v.   Record No. 0821-97-1               JUDGE JAMES W. BENTON, JR.
                                             DECEMBER 23, 1997
LARRY I. HUNT


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Barry Dorans (Samuel W. Meekins, Jr.;
           Wolcott, Rivers, Wheary, Basnight & Kelly,
           P.C., on briefs), for appellant.
           Matthew H. Kraft (Betty M. Tharrington;
           Rutter & Montagna, L.L.P., on brief), for
           appellee.



      Ford Motor Company appeals from the commission's award of

disability benefits to Larry I. Hunt.    Ford argues that Hunt's

activity restrictions were unrelated to his compensable injury,

that the commission improperly applied the "two causes" rule, and

that Hunt failed to adequately market his residual work capacity.

We affirm the commission's award.

                                  I.

      Hunt suffered an injury to his right knee while working in a

Ford assembly plant.    He was treated by Dr. Sheldon Cohn, who

placed Hunt on work restrictions, including no crawling,

squatting, or lifting over thirty pounds.    When Ford accepted the

claim as compensable, the commission awarded Hunt benefits from

March 30, 1993 until May 16, 1993.

      Hunt returned to work at Ford in a light duty capacity and
continued to experience pain in his knee for several months.     In

October 1993, Dr. Cohn performed an "arthroscopic partial medial

meniscectomy and open lateral release of [Hunt's] right knee" and

reported that Hunt was unable to work.    On February 25, 1994, Dr.

Cohn released Hunt for limited duty and noted that Hunt was "not

to squat, crawl, or climb."   In March and April, Hunt

participated in a work-hardening program which also recommended

limits "on prolonged standing/walking."   In a report dated

April 8, 1994, Dr. Cohn "released [Hunt] with permanent work

restrictions of limited squatting, climbing, crawling, and not to

stand over four hours at a time."   Several weeks later, Hunt

returned to Dr. Cohn complaining of pain.   Dr. Cohn gave him

injections and removed him from work until April 27.     When Hunt

returned to work, Dr. Cohn continued his work restrictions.
     In July, Dr. Cohn noted that Hunt was experiencing pain

while at work and removed him from work until August.    In a

report dated August 1994, Dr. Cohn again noted that Hunt was not

to stand or walk for prolonged periods; was not to stoop, climb,

squat, crawl, or kneel; and could not carry heavy materials.

However, after several weeks, Dr. Cohn removed the restrictions

on prolonged standing and walking and noted that "otherwise, his

work restrictions are the same."

     When Hunt returned to work in a modified light duty

capacity, he drove a forklift for three months until Ford moved

the job to another plant.   Hunt then drove a forklift for two




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weeks until he was taken off that job because of Ford's seniority

policy.

     Hunt returned to Dr. Cohn on April 5, 1995, complaining of

swelling in the right knee.   Dr. Cohn diagnosed Hunt with

arthrosis of the right knee and stated, "I do not believe his

present condition is related to his previous work related

injury."

     Ford had no positions within Hunt's restrictions and

released Hunt in December 1995.   In a December 12, 1995 letter

written in response to Ford's request for information regarding

Hunt's restrictions, Dr. Cohn stated that, although Hunt's work

restrictions barred squatting, crawling, or climbing, "[a]ny

further restrictions, which would include the walking and

standing restrictions, would be due to arthrosis of his knee, not

related to a work injury." A month later, Dr. Cohn noted:
          At this time, I will continue his permanent
          work restrictions of no squatting, crawling,
          or climbing. These are work related. At
          this time, I will make his nonwork related
          restrictions, which is mainly for arthritis,
          of not to stand over 30 minutes at one time
          with 10 minute breaks in-between.


     Hunt filed an application alleging a change in his condition

due to temporary total disability as of December 6, 1995.    At the

evidentiary hearing, Hunt testified that he did not have

arthritis in his right knee prior to his 1993 work injury or the

surgery that was performed on his knee.   He also testified that

he did not have arthritis at any place except in his injured




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knee.    In addition, the evidence at the hearing proved that Hunt

sought a second opinion from Dr. Michael T. Longstreet on May 28,

1996.    Dr. Longstreet opined that the knee injury was not

arthritis and that the injury to Hunt's knee was work-related.

        The deputy commissioner ruled that Hunt's current partial

disability was the result of two causes, one work-related and one

non-work-related.    Applying the "two causes" rule, the deputy

commissioner ruled that Ford was liable for the entire resulting

disability.    The deputy commissioner also found, however, that

Hunt failed to adequately market his residual capacity and,

therefore, denied Hunt any benefits.
        Hunt and Ford each requested review by the commission.    The

commission applied the "two causes" rule and found that the

evidence sufficiently established that Hunt's work injury was a

contributing factor to the disability because the standing and

walking restrictions were partly caused by Hunt's work-related

injury.    In holding that the restrictions were not exclusively

caused by the arthritis condition, the commission cited Dr.

Cohn's January 23, 1996 letter and stated that "[i]f the

claimant's restrictions result 'mainly' from his arthritis, some

portion of it must result from his industrial injury."      The

commission also relied on the proof that the two injuries were to

the same body member, the right knee.    In addition, the

commission upheld the deputy commissioner’s finding that Hunt

failed to market his residual capacity and was not entitled to




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benefits from December 1995 to April 28, 1996.    The commission

found, however, that Hunt was entitled to temporary partial

disability benefits beginning on April 29, 1996 when he found

employment within his residual capacity.

                                 II.

     The standard of our review of the commission's findings of

fact is well established.
          We do not retry the facts before the
          Commission nor do we review the weight,
          preponderance of the evidence, or the
          credibility of witnesses. If there is
          evidence or reasonable inference that can be
          drawn from the evidence to support the
          Commission's findings, they will not be
          disturbed by this Court on appeal, even
          though there is evidence in the record to
          support contrary findings of fact.


Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d

507, 510-11 (1983).   The commission's interpretation of the

medical evidence is a finding of fact.     See Ohio Valley Constr.

Co. v. Jackson, 230 Va. 56, 59, 334 S.E.2d 554, 556 (1985).

     Viewed in the light most favorable to Hunt, see R.G. Moore
Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990), the evidence proved that in 1993 and in 1994, Dr. Cohn

limited Hunt from stooping, climbing, squatting, crawling,

kneeling, carrying heavy objects, prolonged standing, and

prolonged walking.    All of those restrictions were caused by

Hunt's work-related injury.   In August of 1994, Dr. Cohn removed

the restrictions on prolonged walking and standing.    However, he

noted that Hunt still had "permanent work restrictions of no



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squatting, crawling, or climbing," which flowed from his

work-related injury.

     In 1995, Dr. Cohn also noted that Hunt then had a

restriction on his standing "which is mainly from arthritis."

Interpreting Dr. Cohn's explanation of the restrictions, the

commission found that because Hunt's standing restriction in 1995

was not based solely on his arthritis, a portion of that

restriction resulted from Hunt's work-related injury, which was

the only other source of his knee disability.    Credible evidence

supports that factual finding.    The commission's interpretation

of Dr. Cohn's report is based on the reasonable inference that

Dr. Cohn understood that "mainly" means "in the principal

respect" or "for the most part."     Webster's Third New

International Dictionary 1362 (Unabridged, 1965).

     The principle is well established that when medical evidence

is not conclusive, it "is subject to the commission's

consideration and weighing."     Hungerford Mechanical Corp. v.
Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).     As the

trier of fact, the commission is also free to consider "[t]he

testimony of a claimant . . . in determining causation,

especially where the medical testimony is inconclusive."      Dollar

General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,

154 (1996).   Although the evidence proved that in 1995 the

restriction against standing for prolonged periods was "mainly"

based on Hunt's arthritis, which Dr. Cohn deemed a




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non-work-condition, the evidence also proved that on several

occasions prior to 1995 Dr. Cohn barred Hunt from "prolonged

standing/walking" because of his work-related injury.   The

commission's interpretation of Dr. Cohn's 1995 report was made

within the context of Hunt's medical history and Hunt's testimony

that, apart from his work-related injury and his arthritis, he

had no other physical ailments that contributed to the problems

with his knee.   Credible evidence proved that Hunt's only other

disability to that same knee was a work-related injury.

Accordingly, we hold that the commission's finding is supported

by credible evidence.
                                 III.

     The principle is well established that "where a disability

has two causes: one related to the employment and one unrelated

[to the employment] . . . full benefits will be allowed."

Bergmann v. L&W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 803

(1981).   The evidence proved that Hunt suffered disability in the

knee from both a work-related injury and a non-work-related

condition.   Thus, the evidence proved Hunt's disability to the

knee resulted from two causes.    Accordingly, we affirm the

commission's finding regarding Hunt's disability.

                                 IV.

     Hunt testified regarding the job search he conducted after

being released from Ford.   He spoke with Ford and his union

representatives several times, he contacted the employers listed



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on his Work Search Contacts Record, he contacted potential

employers verbally, and he checked the newspaper employment

advertisements.   Eventually, on April 29, 1996, Hunt obtained a

part-time position as a painter's helper earning an average of

$125 per week.    Prior to his release, Hunt had been earning

approximately $614 per week at Ford.

     The evidence proved that in April 1996, Hunt obtained

employment that he could perform consistent with his

restrictions.    The commission made the following findings

regarding Hunt's efforts to locate that employment:
          In April 1996, he found a part-time job with
          J.M. Jolly, painting contractor, earning $125
          per week. The claimant, who is 49 years old,
          has worked for his preinjury employer in an
          assembly plant for 16 years. There is no
          information in the record concerning his
          education or training. The claimant
          indicated that he looked in the want ads but
          could not perform the required job duties due
          to his restrictions. . . . Considering the
          evidence before us concerning the nature and
          extent of his disability and his experience,
          we find that he has found suitable employment
          within his residual capacity.


     Unlike the facts in National Linen Service v. McGuinn, 8 Va.

App. 267, 380 S.E.2d 31 (1989), where the employee "did not

attempt to find any other job," id. at 270, 380 S.E.2d at 33, the

evidence proved, and the commission found, that Hunt sought other

employment.   Because the record contains credible evidence to

support the commission's findings, we affirm the ruling that Hunt

made reasonable efforts to market his residual work capacity.

     For these reasons, we affirm the commission's award.



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        Affirmed.




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