                               COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, Powell and Senior Judge Willis
Argued at Alexandria, Virginia


JOHN A. ILG
                                                                MEMORANDUM OPINION ∗ BY
v.     Record No. 2314-10-4                                     JUDGE JAMES W. HALEY, JR.
                                                                      JULY 12, 2011
UNITED PARCEL SERVICE, INC. AND
 LIBERTY INSURANCE CORPORATION


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Craig A. Brown (Ashcraft & Gerel, LLP, on brief), for appellant.

                 Patricia C. Arrighi (PennStuart, on brief), for appellee.


                                         I. INTRODUCTION

       Appealing a decision of the Workers’ Compensation Commission terminating his

benefits for failure to participate in vocational rehabilitation, John Ilg argues the commission

erred in interpreting our prior decision in this case. We affirm the judgment of the commission.

                                         II. BACKGROUND

       Many of the facts relevant to this appeal from remand are contained in our earlier opinion

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

following background.

                         While working as a delivery truck driver [for UPS],
                 employee fell from a truck on February 12, 2007 and suffered
                 injuries. On April 26 of the same year, he filed a claim for benefits
                 form with the commission. On that form is a blank space next to
                 the words “Nature of the injury.” On that space employee
                 apparently wrote, “injury to right hand and right knee.” The
                 commission issued an order, dated May 9, requiring that employer
                 complete attached forms and return them to the commission.

       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Employer’s insurance carrier responded to this order with a
letter . . . . On June 5, the commission sent a letter to both parties
“acknowledging receipt of the carrier’s position that temporary
total and temporary partial wage loss benefits have been paid
voluntarily.” The letter also announced that employee’s
application for hearing would be placed on “administrative hold
for the executed Agreement to Pay Benefits form.”

        On June 29, 2007, the agreement to pay benefits form,
signed by both parties, was filed with the commission. Next to the
form’s pre-printed language “Nature of injury or illness, including
body parts affected” is only “Pain in Right Knee.” The form does
not refer to the hand injury mentioned on employee’s original
claim for benefits form. The commission approved this agreement
to pay benefits by an award order dated July 12. . . .

         After the filing of the award order, employee hired a
lawyer, who sent a letter to the commission, dated November 6,
2007. . . . The letter also stated that, as a result of his February 12
work-related fall from the truck, employee had suffered injuries to
his right hand, right knee, and to his head. The letter reads, in part:
“Please treat this letter as Claimant’s Application for Hearing, by
counsel, based upon the injuries described above. Claimant seeks
all benefits to which he may be entitled under the Virginia
Workers’ Compensation Act.” The commission’s response to the
letter, dated November 9, states that the requested documents are
enclosed, but it does not mention employee’s hearing request at all.
Nor does it contain any acknowledgement that employee’s hearing
request alleges injuries to body parts (right hand and head) that
were not included in the earlier agreement to pay benefits. Instead,
the commission noted: “No further action will be taken on this file
until requested by the parties. If we can be of any further
assistance to you, please so advise.”

         On February 25, 2008, Dr. Randall Peyton, who treated
employee’s knee injury, signed two forms, each labeled “fitness
for duty evaluation.” Each form listed employee’s name. One had
a diagnosis of “knee pain” and indicated that employee’s fitness
for duty was “restricted.” Dr. Peyton checked a box next to the
words “Medium work – lifting 50lbs maximum with frequent
lifting and/or carrying objects weighing up to 25lbs.” Under
“comments” Dr. Peyton wrote “unable to perform stair climbing
[longer than] 4.5 minutes.” The second form, also dated February
25, had a diagnosis of “R knee/R hand.” On this form, Dr. Peyton
circled the words “unable to work in any capacity.” The
inconsistency in the forms is explained in follow-up notes also
written by Dr. Peyton. According to the notes, “[w]e have gone
through his exam and gone through the work-hardening notes and

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               stated that the hand apparently is worsening from lifting. He is
               supposed to have this operated on. We talked about a work release
               in relation only to the knee.”

                        After receiving the form that declared employee fit for
               restricted duty in relation to his knee injury, employer apparently
               sought employee’s participation in vocational rehabilitation.
               Employee’s counsel responded by letter on May 29, 2008. This
               letter referred to the form that stated that employee was unable to
               work in any capacity. . . . On June 10, 2008, employer filed an
               application for a hearing. The application included a copy of the
               fitness for duty evaluation releasing employee for restricted
               work. . . .

                      Senior Claims Examiner Linda deLamorton issued a letter
               opinion for the commission, dated July 7, 2008, denying
               employer’s application for a hearing. The opinion reads, in part:

                      The original agreement does not (likely due to poor
                      preparation) include the right hand as part of the injuries in
                      this case. Interestingly, the treatment notes from the onset
                      included the right hand. In any event, the employer/carrier
                      did not raise causation on the face of the employer’s
                      application, and this discrepancy is not part of my
                      consideration. It is apparent the employee is totally
                      disabled from both the right knee and right hand, and
                      unable to participate in vocational rehabilitation. At best,
                      the reports from Dr. Peyton are ambiguous.

                      Under these circumstances, probable cause does not exist to
                      grant a hearing to the employer/carrier.

                       Employer argued that the full commission should reverse
               Ms. deLamorton’s ruling because the hand condition that kept
               employee from working was “not related to the compensable
               injury.” The full commission issued an opinion on October 30,
               2008, affirming the earlier ruling.

Id. at 368-71, 679 S.E.2d at 546-47.

       On appeal, this Court reversed the commission. The Court held that since Ilg was

released to work based on his knee injury, and the hand injury was not the subject of an

enforceable award, UPS demonstrated probable cause that a change in condition occurred. Id. at




                                               -3-
374, 379, 679 S.E.2d at 549, 551. Accordingly, the Court remanded the case for hearing. Id. at

379, 679 S.E.2d at 551. 1

       On remand, a deputy commissioner found Ilg justifiably refused to cooperate with

rehabilitation efforts. The deputy commissioner found Ilg suffered from a total disability during

the relevant period and thus had no obligation to participate in vocational rehabilitation.

       In an opinion dated September 30, 2010, the commission reversed. The commission

determined that since Ilg never sought an award for his hand injury, UPS was “not required to

take the hand injury into account in establishing” an unjustifiable refusal to participate in

vocational rehabilitation. Since Ilg had been released to light duty for his knee injury prior to his

refusal to participate in rehabilitation, the commission concluded Ilg’s refusal was unjustified

and UPS’s application to terminate Ilg’s award should have been granted. Ilg appeals.

                                          III. ANALYSIS

       Code § 65.2-603(B) provides:

                       The unjustified refusal of the employee to accept . . .
               vocational rehabilitation services when provided by the employer
               shall bar the employee from further compensation until such
               refusal ceases and no compensation shall at any time be paid for
               the period of suspension unless, in the opinion of the Commission,
               the circumstances justified the refusal.




       1
         Our decision in Ilg, 54 Va. App. at 366, 679 S.E.2d at 545, did not preclude an award of
benefits pursuant to Code § 65.2-704 for Ilg’s hand injury. We held only that in a determination
of the existence of probable cause for a Code § 65.2-708 proceeding, a defense to a change of
condition based on an unadjudicated, allegedly work-related injury was not available. If a causal
relationship had been earlier or contemporaneously adjudicated, it could be asserted as a defense
in a Code § 65.2-708 proceeding. But Code § 65.2-704 and § 65.2-708 are statutorily separate,
and should not be conflated. Each statute affords the respective parties the principles of due
process within the parameters of the issue raised in each application. An adjudication of either
an award or a change of condition is admissible for the commission’s consideration in a
subsequent hearing under either statute. But the Workers’ Compensation Act makes an
adjudication a condition precedent to admissibility.


                                                -4-
       This rule is “based upon the premise that an employer is liable for the condition of an

employee resulting from [an] industrial accident . . . [but] not liable for conditions not causally

related to the employee’s work.” Am. Furniture Co. v. Doane, 230 Va. 39, 42-43, 334 S.E.2d

548, 550 (1985) (suspending benefits where employee refused light work based on unrelated

injury that occurred after the industrial accident). Accordingly, employers must offer

employment “within the employee’s residual capacity resulting from the industrial accident,” id.,

but are not responsible for accommodating unrelated physical conditions arising subsequent to

the industrial accident. In other words, “when an employee’s work-related disability has

resolved itself to the point that the worker can return to gainful employment, he or she is required

to do so. An employer is not responsible for a disabled employee” who is prevented from

returning to work for reasons other than the work-related injuries. Eppling v. Schultz Dining

Programs, 18 Va. App. 125, 130, 442 S.E.2d 219, 222 (1994); see also Doane, 230 Va. at 42-43,

334 S.E.2d at 550.

       The same principles apply to a failure to cooperate with vocational rehabilitation under

Code § 65.2-603. Ilg, 54 Va. App. at 374, 679 S.E.2d at 549. Where an employee declines to

cooperate with an employer’s rehabilitation efforts due to physical limitations unrelated to his

industrial accident, “the employee’s refusal to cooperate is ‘unjustified’ for the purposes of Code

§ 65.2-603, and the employer is absolved of liability for compensation for the duration of the

refusal.” Ilg, 54 Va. App. at 374, 679 S.E.2d at 549. 2


       2
          Unlike Doane, the physical condition here offered as a defense to the employer’s
change-in-condition application arose not “since the accident,” 230 Va. at 43, 334 S.E.2d at 550,
but contemporaneous with the accident. Nonetheless, we believe the holding in Doane controls.
        In this regard, we distinguish James v. Capitol Steel Construction Co., 8 Va. App. 512,
382 S.E.2d 487 (1989). In James, this Court held that in providing work suitable to an
employee’s residual capacity, an employer must consider conditions that pre-date an employee’s
employment. Id. at 516, 382 S.E.2d at 489. The Court found that since the condition “was
obvious to the employer when the employee was hired . . . the employer cannot now be heard to
claim that James’ condition is not to be considered.” Id.

                                                -5-
       This standard recognizes that the Workers’ Compensation Act limits an employer’s

liability to work-related injuries for which an award was obtained. See Code § 65.2-700, et. seq.

Indeed, all workers’ compensation related questions, “if not settled by agreements of the parties

interested therein with the approval of the Commission, shall be determined by the

Commission.” Code § 65.2-700. Whether an injury is compensable and work-related is such a

question. The commission responds to this question by deciding on an award — “the grant or

denial of benefits or other relief.” Code § 65.2-101.

       Here, Ilg’s physician determined his knee condition, the injury upon which his award was

based, had improved enough for Ilg to be medically cleared to perform restricted work duties.

Nonetheless, Ilg refused vocational rehabilitation based on a hand injury that had never been the

subject of an enforceable award. In its opinion after our remand, the commission wrote: “To

allow the claimant to establish a justification for his refusal by relying upon a causal connection

between his hand injury and the compensable accident would allow claimant to convert this

proceeding from one under Code § 65.2-708 to a proceeding under Code § 65.2-704.” We

agree. 3 UPS’s change-in-condition application was made under Code § 65.2-708, which

“applies only to the review of claims where there has already been an award of benefits; the

statute does not create a procedure for granting new awards.” Ilg, 54 Va. App. at 375, 679




        In contrast to James, here Ilg seeks to defend against the employer’s change-in-condition
application based upon an injury that occurred simultaneously with the compensable,
work-related injury. As such, the employer could not foresee or contemplate the effect of the
injury on Ilg’s residual capacity. Similarly, in Doane, the employer was not required to consider
a physical condition that arose after the accident when it offered light-duty work.
       3
         We disagree with Ilg’s argument that this holding does not accord with the principle
that the Workers’ Compensation Act is to be liberally construed in favor of the employee. See
Masonite Holdings, Inc. v. Cubbage, 53 Va. App. 13, 20, 668 S.E.2d 809, 812 (2008). Our
holding provides a simple, straightforward method to obtaining benefits: obtain an award.


                                                -6-
S.E.2d at 549. 4 To permit a claimant to establish a defense to a change-in-condition application,

based upon a condition that has not been adjudicated casually related to the original injury, or

work-related, is in effect permitting a de facto award, an adjudication, for an injury which has

never been adjudicated. 5

       For the foregoing reasons, the judgment of the commission is affirmed.

                                                                                          Affirmed.




       4
          On November 7, 2007, Ilg filed an application for benefits pursuant to Code § 65.2-704
for his hand injury, but never pursued the application by requesting a hearing upon the same.
Accordingly, the application was never adjudicated on the merits, and Ilg never received an
award for the injury. In its decision, the commission noted, “had the claimant requested that his
November 7, 2007, application be considered along with the employer’s application, the
outstanding award could have been modified to include the hand injury.”
       5
          Ilg questions why, if UPS should have prevailed on the merits in the previous appeal,
we did not then enter judgment. We did not enter judgment because the pertinent question
concerned whether “the commission erred in rejecting the hearing application,” Ilg, 54 Va. App.
at 368, 679 S.E.2d at 546, and so only this ground for relief was properly before us, see Cirrito v.
Cirrito, 44 Va. App. 287, 309, 605 S.E.2d 268, 278 (2004). Moreover, our opinion left open the
possibility that Ilg would seek a formal award for his hand injury, as the commission noted was a
possibility.

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