Counsel’s Knowledge of Disability Status Change is Not Imputed to Workers’ Compensation Claimant/Client

On October 13, 2020, the Honorable Robert J. Humphreys of the Virginia Court of Appeals affirmed the Workers’ Compensation Commission’s determination that a claimant must be personally aware of her change in disability status before her benefits may be modified. See Securitas Sec. Servs. United States v. Gersch, 2020 Va. App. LEXIS 242 (Oct. 13, 2020).

The facts underlying Gersch arose on January 10, 2018, when Carolyn Gersch (“Ms. Gersch”) sustained injuries while working as a security officer. At the time of her injuries, Ms. Gersch was employed by Securitas Security Services USA, Inc. (“Securitas”). Ms. Gersch filed a claim for benefits as a result of those injuries on February 22, 2018. Shortly thereafter, Ms. Gersch began treatment with Dr. Robert Wyker (“Dr. Wyker”) for left shoulder and left hip injuries. Dr. Wyker placed Ms. Gersch on “temporary total disability beginning on the date of shoulder surgery [on July 25, 2018] through November 13, 2018.” Id. at *1-*2.

On January 17, 2019, “Dr. Wyker again totally restricted Gersch from work in anticipation of a total replacement of her left hip,” which took place on March 18, 2019. Ms. Gersch had two follow-up visits with Dr. Wyker following her hip replacement surgery. First, on May 14, 2019, Dr. Wyker specifically noted that Ms. Gersch was “not to return to work.” Then, on June 11, 2019, Dr. Wyker speculated that Ms. Gersch may have some soft tissue damage and planned to recheck Ms. Gersch in four to six weeks, but Dr. Wyker did not specifically note Ms. Gersch’s ability to work. Id. at *2.

In anticipation of an evidentiary hearing in front of the Workers’ Compensation Commission, counsel for Ms. Gersch “sent Dr. Wyker a questionnaire that inquired whether [Ms. Gersch] was totally disabled from employment in connection with her injuries.” Dr. Wyker responded to the questionnaire on July 24, 2019, “wherein he answered that Gersch was not totally disabled and was at least able to perform ‘light duty sedentary type work.’” Id. at *2-*3.

At the evidentiary hearing on August 5, 2019, Ms. Gersch testified that “she had not been informed by either Dr. Wyker or her counsel that she was released for sedentary work.” The deputy commissioner found in favor of Ms. Gersch and awarded her “medical benefits for her shoulder and hip injuries. She was also awarded temporary total disability from July 25, 2018 through November 22, 2018, and temporary total disability beginning January 17, 2019, and continuing until conditions justified a modification thereof.” Id. at *3.
The Commission affirmed each of the deputy commissioner’s findings. Specifically, the Commission found that Ms. Gersch did not have a duty to market her residual physical capacity “because the medical record provided no statement that her work status had changed, Gersch denied knowledge of light duty work release after July 24, 2019, and the deputy commissioner found her to be a credible witness.” Id. at *3-*4.

Of the Commission’s findings, Securitas only appealed “the Commission’s affirmance of the award of total disability on and after July 24, 2019.” Id. at *4. The Court of Appeals began its analysis by noting that “[t]he test for determining whether a claimant failed to make reasonable efforts to market his or her residual skills and forfeited the right to compensation is not a bright line but rather involves a multitude of factors.” Such a determination involves analyzing “the claimant’s efforts both in the context of reasonableness and dependent upon all the facts and surrounding circumstances,” and that such an analysis “necessarily includes consideration of the claimant’s perception of his or her condition, abilities, and employability, and of the claimant’s basis for that perception.” Id. at *5.

Based on the circumstances of this case, the Court of Appeals found that “there is evidence to support the Commission’s conclusion that Gersch proved an ongoing disability.” In large part because “Gersch testified that Dr. Wyker’s answers to the questionnaire had not been previously communicated to her” and the Commission found her testimony credible, the Court of Appeals concluded that the “evidence, separately and in the aggregate, supports the Commission’s finding that Gersch was reasonably unaware she had residual work capacity and was entitled to temporary total disability after July 24, 2019.” Accordingly, the Court of Appeals did not disturb Ms. Gersch’s disability benefits. Id. at *6-*8.

In a footnote, the Court of Appeals also noted that Securitas argued Ms. Gersch “had a duty to market regardless of when she became aware of sedentary work release and impliedly assert the Commission erred in finding Gersch made a ‘reasonable effort’ to market her remaining capacity.” The Court of Appeals did not address this argument because “Securitas did not actually assign error to this ruling . . . [and] we address only arguments raised by an appellant’s express ‘assignments of error’ in their brief.” Id. at fn. 1.

The Court of Appeals has taken a strange stance in Gersch, which appears to reward failures to communicate with one’s client. It was Ms. Gersch’s counsel who sent Dr. Wyker the questionnaire and received his responses on July 24, 2019. However, counsel’s knowledge of Ms. Gersch’s change in disability status was not imputed to Ms. Gersch. It appears, therefore, that this ruling contravenes the general principle that an attorneys’ knowledge is imputed to the client.