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Lack of agreement precludes ‘de facto’ award finding

Virginia Lawyers Weekly//October 19, 2021

Lack of agreement precludes ‘de facto’ award finding

Virginia Lawyers Weekly//October 19, 2021//

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Where there was no written agreement between employer and claimant that he suffered a compensable injury, the Virginia Workers’ Compensation Commission correctly refused to impute a de facto benefits award.

Further, the commission correctly concluded that the evidence showed that claimant did not suffer a compensable injury.

Prior proceedings

Weather Control employed claimant as an HVAC technician. Claimant climbed a 20-rung metal ladder to service a heat pump on a bakery’s roof. He testified that he banged his knee on the last rung. His knee became swollen and painful but he testified that he stood at the heat pump for 30 minutes to determine the problem.

He climbed back down the ladder, went into the bakery to have someone sign the paperwork and started down the bakery’s outside steps. Claimant testified that his leg swelled up. He stated he was walking with a limp before he used the stairs but “he could not walk after the ‘sudden pop’ on the bakery stairs.

“Claimant was transported to the emergency room and was ultimately treated by Dr. Edward Chang, who diagnosed him with a torn quadriceps tendon. Dr. Chang performed two surgeries on claimant to repair the tendon in August 2018 and March 2019.

“The emergency room records indicated that claimant reported that the injury occurred as he descended steps. Claimant also reported a history of knee pain over the preceding year and claimed that his knee had buckled frequently. Nevertheless, claimant testified that he had not reported that information to hospital staff and did not know why the hospital would include it in his medical history.”

Claimant initially filed for benefits based on a quadricep injury. Employer provided him “agreement forms,” which claimant did not sign. Employer made voluntary weekly temporary total disability benefits. Claimant then filed an amended claim, alleging injuries to his legs, back and neck. Claimant still had not signed the agreement forms and requested a hearing.

Employer then contested whether claimant suffered a compensable injury but continued the voluntary payments until one week before the hearing.

At the hearing, claimant argued he was entitled to a de facto benefits award because employer had made voluntary payments. The deputy commissioner ruled against claimant and concluded he did not suffer a compensable injury. The full commission affirmed.

De facto award

“Claimant argues that a ‘de facto award existed … because [employer] paid temporary total disability benefits and medical benefits for over two years without contesting the compensability of the claim and sent agreement forms’ and he relied on employer’s actions to his detriment.

“He asserts that the Commission’s finding that there was ‘no evidence’ of an agreement is ‘belied’ by the fact that the employer sent agreement forms to him. Claimant asserts that a miscommunication between the parties caused him to request a hearing rather than sign the agreement forms.

De facto awards are based on Code § 65.2-701(A), which provides that if, after an injury, ‘the employer and the injured employee … reach an agreement in regard to compensation or in compromise of a claim for compensation under this title, a memorandum of the agreement in the form prescribed by the Commission shall be filed with the Commission for approval.’ (Emphasis added). …

“‘The de facto award doctrine permits the [C]ommission to impute an award based upon’ such an actual ‘agreement or stipulation.’ … But the doctrine ‘does not authorize the [C]omission to impute an award based upon an imputed agreement or stipulation.’ … (emphasis added).

“Indeed, it is well-established that ‘[m]aking voluntary payments, by itself, falls far short of satisfying the preconditions of the de facto award doctrine.’ …

“The de facto award doctrine does not apply in this case because the record shows that there was no actual agreement between claimant and employer. As the Commission found, claimant neither signed nor returned the agreement forms to employer, manifesting that he had not actually agreed to the terms employer offered.

“While claimant summarily concludes on brief that a miscommunication between the parties caused him to request a hearing rather than sign the agreement forms, he cites no evidence in the record of such a miscommunication.

“Instead, the record demonstrates that there was no agreement between the parties and employer consistently contested the compensability of the claim after claimant amended and enlarged his claim and requested a hearing.”

No compensable injury

“Claimant argues that the Commission erred in finding that he did not suffer a compensable injury by accident. He asserts that his testimony, standing alone, established that he sustained some injury when he struck his knee on the ladder. He contends that the ‘simple explanation’ for why the cause of the injury was not reflected in the medical records was that ‘the doctors … did not have the opportunity to examine him’ and ‘focused on the more serious tendon rupture injury.’

“ Moreover, claimant asserts that Dr. Chang ‘agreed, to a reasonable degree of medical certainty, that a knee contusion leading to an altered gait could have caused the rupture of the tendon.’ Accordingly, he concludes that when he ‘sustained a tendon rupture while limping due to the pain from striking his knee on the ladder, it was as a compensable consequence of his initial injury.’ …

“We will not reverse the Commission’s finding that claimant’s injury was not compensable because the record supports the Commission’s finding that claimant’s version of events was not credible.

“Claimant’s initial claim for benefits, the emergency room medical records, and Dr. Chang’s medical records all indicated that claimant sustained his injury when he “fell down steps,” not when he struck his knee on a ladder rung.

“Claimant’s testimony that he struck his knee on a ladder rung before he fell on the steps notwithstanding, the medical records contain no mention of the ladder until a year and a half after the accident.

“In fact, the emergency room records indicated at least a year-long history of knee pain and buckling before the August 13, 2018 incident occurred, an inconsistency which claimant could not explain.”


Mitchell v. Weather Control, et al., Record No. 0415-21-4, Oct. 5, 2021. CAV (Haley) From the Virginia Workers’ Compensation Comm’n. David M. Snyder for appellant; Roberta A. Paluck for appellees. VLW 021-7-133, 10 pp. Unpublished.

Editor’s note: A version of this digest that appeared in the Oct. 18, 2021, print edition misidentified the case as VLW No. 020-7-133.

VLW 021-7-133

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