Claimant Refuses to Attend FCE, Commission Denies Employer’s Application for Hearing

 

Workers' Compensation Case Watch

In Manion v. Northwestern Regional Adult Detention Ctr., the claimant needed a new physician because her doctor was no longer providing pain management. The employer asked a nurse case manager to find a new doctor for the claimant and to obtain a Functional Capacity Evaluation (“FCE”) from the physician. The nurse got an FCE referral from the new doctor and scheduled the appointment. She told the claimant about the appointment in person and left her several message about it. The claimant said she would not attend and cancelled the FCE.                                                                                                                                   

The defendant filed an Employer’s Application for Hearing alleging refusal of medical treatment because the claimant did not go to the FCE. The Deputy Commissioner denied the Application because the scheduled FCE was not medically necessary treatment. On review, the Full Commission cited the longstanding principal that the claimant’s medical treatment is directed by the treating physician and not the defendants. They noted that a

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Chandler Test Must be Applied to Requests for Spousal Care

 

Workers' Compensation Case Watch

In Ross v. Cumberland Hospital, the claimant sustained a severe brain injury. Her doctor said it was medically necessary that she have a home health aide or family member oversight to assist her with activities of daily living and monitor safety concerns. The claimant filed a claim asking that her spouse be paid to provide home health care to her.

The Commission found that spousal care should be authorized. In reaching that conclusion,

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Commission Determines “Out of Work” Note is a “Light Duty” Note

 

Workers' Compensation Case Watch

In Umana v. Clark Construction Group, the claimant was injured in a work accident.  The claimant saw a doctor for his work-related injuries.  In his report, the doctor outlined the claimant’s light duty restrictions but also said “there is no light duty work available, so he remains unable to work at this time.”  In his office notes each month, the doctor repeated that because there was no light duty available, the claimant remained unable to work.  The Deputy Commissioner found that the claimant was totally disabled during those periods.

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320-Mile Round Trip to Doctor Unreasonable

 

Workers' Compensation Case Watch

In Clarke v. Hughes Center, LLC., the claimant established a treating physician relationship with a pain management doctor in Danville, VA. The claimant later moved out of state, but continued having appointments with the same treating physician. The claimant was traveling 320 miles round-trip to see the doctor. The defendants filed an Employer’s Application for Hearing seeking a change in treating physician. The Deputy Commissioner denied the Employer’s Application.  

On review, the Full Commission listed the six-factors it considers to justify a change in treating physician: 1) inadequate treatment is being rendered; 2) a specialist’s treatment is needed but

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Simple Act of Bending

 

Workers' Compensation Case Watch

In Williams v. CJ Designs, Inc.,  VA00001427406 (July 8, 2019), the Virginia Workers' Compensation Commission found that a claim arose out of the employment when an employee was injured while straightening up after bending from the waist with nothing in her hands.

The claimant, a Certified Nursing Assistant, was helping a patient into a car when she injured her back. The claimant bent straight forward from her waist, with her arms in a U-shape so she could scoop them under the patient’s legs and pivot the patient’s feet in front of her. She had already touched the patient’s feet, did not have anything in her hands, and was straightening from the waist when she felt a pop in her back. The claimant confirmed that she had performed this action many times and that it was not in any way awkward or unusual. The Deputy Commissioner found that the claimant’s injury did not arise out of the employment.

The Commission REVERSED, finding that the claimant was required to

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Removing Wasp Nest in the Course of the Employment

 

Workers' Compensation Case Watch

The Virginia Workers' Compensation Commission recently addressed the “in the course of” requirement in Redleaf v. W&L Mail Service, Inc., JCN. VA00001513936 (June 11, 2019).

The claimant, a bulk mail delivery driver, arrived at the loading dock of a post office.  When the claimant got out of his truck, he noticed a large wasp nest above the stairs and wasps flying around.  He asked a post office employee to take care of the nest because he did not want to get stung.  The post office employee sprayed the nest and spray ran down the walls to the ground.  The claimant got a broom to knock the nest down.  The post office employee was too short to reach the nest, so he asked the claimant to use the broom to knock it down for him.  The claimant jumped up to knock the nest down, slipped on a substance that he believed was wasp spray, and hurt his ankle. 

The claimant testified that removing the nest would ensure that there would not

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