Virginia Lawyers Weekly VA Lawyers Weekly
An employee was properly denied workers’ compensation benefits where she was unable to demonstrate that her psychological and physical diagnoses were related to the injuries she suffered in a workplace accident, and she failed to sufficiently demonstrate her efforts to market her residual work capacity to be entitled to lost wages.
Background
On June 6, 2014, Adrienne Mallard fell while working at Next Day Temps Inc. Emergency doctors diagnosed her with a broken left ankle. On June 9, 2014, she began treatment with Dr. Phillip Omohundro, who also found she sprained her right ankle. Mallard was unable to work through September 2014. She continued to have pain in her left ankle and leg the following month but was able to walk without assistance. By the summer of 2015, she had returned to regular duty but continued to have limited range of motion in her left ankle.
In the fall of 2015, other doctors in Omohundro’s practice found that Mallard had moderate generalized osteopenia and attributed her continued pain to neuritis. Dr. Steven Neufeld held an independent medical examination of Mallard in December 2015 and opined that her tendinitis was not causally related to her original injury.
On July 20, 2016, Deputy Commissioner Plunkett found that Mallard was entitled to medical benefits for injuries to her left leg, left foot, left ankle, right ankle, left and right wrist, and left knee, but denied her claims for left hip and right elbow injuries and CRPS/RSD to her left ankle as not supported by medical evidence and not causally related to the workplace injury. Mallard was awarded lost wages from the date of the injury until Sept. 28, 2014. She did not request further review.
In June 2016, Mallard was examined by Dr. Bruce Neeritz who opined that her ongoing symptoms could be considered CRPS/RSD. She also saw Dr. Memanatu Bangura who diagnosed her with single episode major depressive disorder and moderate anxious distress.
On Dec. 21, 2016, Mallard had an IME with Dr. Kevin Fitzpatrick. His findings did not support a CPRS/RSD diagnosis, but he found neuralgia and tendinitis related to the original injury. On Jan. 4, 2017, Mallard saw Dr. Zarate, a podiatrist, who diagnosed her with CRPS/RSD stemming from the original ankle fracture.
Mallard filed additional claims for benefits seeking compensation for CRPS/RSD of the left foot/leg, major depressive disorder/anxiety, chondromalacia patella in her left knee, and lost wages. At a deposition on Feb. 28, 2017, Omohundro testified that he could not state with certainty that Mallard’s persistent pain was consistent with a diagnosis of CRPS/RSD and could not correlate her knee pain to the original injury. On March 21, 2017, Mallard had an IME with Dr. Daken, a psychologist, who diagnosed her with adjustment disorder with mixed anxiety and depressed mood not causally related to the original workplace injury.
On June 6, 2017, Deputy Commissioner Kennard denied Mallard’s claims. The full commission unanimously affirmed, and this appeal followed.
Analysis
The deputy commissioner considered all of this evidence, made credibility evaluations, and assigned weight to each. Deputy Commissioner Kennard appropriately gave significant weight to the opinion of Omohundro, as the treating physician, and found no causal connection between her left knee complaints, any possible CRPS/RSD, and her compensable injury. He also appropriately gave significant weight to Daken’s opinions, given his expertise as a psychiatrist, and found that her symptoms of depression, stress, and anxiety were not causally related to the original workplace injury. These findings were supported by credible evidence and affirmed by the commission. The court will not disturb the commission’s resolution of questions raised by the contradictory evidence in the record and conflicting medical opinions.
Mallard’s wage loss claim for the period from May 1, 2016 through May 26, 2016 was addressed in Deputy Commissioner Plunkett’s opinion, which was not appealed. As such, any further review of this claim is barred by the doctrine of res judicata.
Regarding Mallard’s claim for benefits after that date, the commission properly credited Omohundro’s testimony that she was under no work restrictions between May 27 and Oct. 1 of that year and found that Mallard was able to perform her pre-injury work during that period. Mallard’s testimony about her efforts to find work was not supported by documentation and the commission found her unpersuasive. The commission’s conclusion that Mallard’s efforts to market her residual work capacity were insufficient was supported by the evidence in the record and will not be disturbed by this court.
Finally, as Mallard failed to make a specific legal argument about why the documents she claims are missing from the record should have been included, the court finds that the record is complete. Her other assignments of error were not sufficiently developed and fail to provide a legal basis of support and, as such, are deemed waived.
Affirmed.
Mallard v. Next Day Temps Inc., Record No. 0028-18-4, May 14, 2019. CAV (Huff), from Virginia Workers’ Compensation Commission. Esther King for Appellees. VLW 019-7-090. 13 pp. Unpublished.
