CAUSATION
See Accident, Occupational Disease
If the evidence shows that it is just as probable that the
disability resulted from a cause which is not compensable, as it is that it resulted from
one which is compensable, the claimant has not sustained his burden of proof. Bergmann
v. L&W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981). But where a
disability has two causes: one related to the employment and one unrelated
to the employment, full benefits will be allowed. Bergmann v. L&W Drywall,
222 Va. 30, 32, 278 S.E.2d 801, 803 (1981). The "two causes rule"
addresses those cases "where a disability has two causes: one related to the
employment and one unrelated." Smith v. Fieldcrest Mills, Inc., 224 Va. 24,
28, 294 S.E.2d 805, 808 (1982) (quoting Bergmann v. L & W Drywall, 222 Va. 30,
32, 278 S.E.2d 801, 803 (1981)); see also Shelton v. Ennis Business Forms, 1 Va.
App. 53, 55, 334 S.E.2d 297, 299 (1985). Under the two causes rule, "full
benefits [are] allowed when it is shown that `the employment is a contributing factor."
Smith, 224 Va. at 28-29, 294 S.E.2d at 808 (quoting Bergmann, 222 Va. at 32,
278 S.E.2d at 803); see also Shelton, 1 Va. App. at 55, 334 S.E.2d at 299. The
"more probable than not rule," addresses those cases where only one of
a number of possible factors caused the disability. See id. Under the more
probable than not rule, for the disability to be compensable, it must be more probable
than not that it was caused by the work-related factor. Id. That is, a
preponderance of evidence must show that work-related factor was the cause of the
disability. Id.
Two Causes Rule vs. More Probable Than Not Rule. The Workers'
Compensation Commission did not err in awarding temporary total
disability benefits to claimant upon her change-in-condition application.
Claimant had pre-existing knee problems when she injured her right knee in
a compensable accident. The pertinent findings and conclusions of
claimant's treating physician may be stated as follows: (1) Claimant's
1998 and 1999 surgeries on her right knee resulted in claimant's temporary
incapacity to work; (2) the condition of claimant's right knee
necessitated the 1998 and 1999 surgeries; and (3) while primarily caused
by the pre-existing degenerative knee disease, the condition of claimant's
right knee necessitating the 1998 and 1999 surgeries was also caused, to
some small degree, by claimant's 1996 compensable work-related injury.
In proving causation in a workers' compensation case
where the evidence demonstrates two or more potential causative factors,
one of two conclusions follows. Either, a combination of factors
contributed to cause the disability; or, one of the factors caused the
disability to the exclusion of the others. The "two causes
rule" addresses those cases "where a disability has two causes:
one related to the employment and one unrelated." Under
the two causes rule, "full benefits [are] allowed when it is shown
that 'the employment is a contributing factor.'"
The "more probable than not rule," addresses
those cases where only one of a number of possible factors caused the
disability. Under the more probable than not rule, for the
disability to be compensable, it must be more probable than not that it
was caused by the work-related factor. That is, a preponderance of
evidence must show that work was the cause of the disability. Duffy
v. Commonwealth/Dep't of State Police, 22 Va. App. 245, 251,
468 S.E.2d 702, 705 (1996) (citations omitted) (alteration in
original).
Here, the evidence proved that the need for
claimant's 1998 and 1999 knee surgeries was caused by two factors: the
non-work-related degenerative condition and the compensable 1996
work-related injury. The extent or degree to which the work-related
cause contributed is not important. It matters only that the work-related
cause contributed in some part to claimant's disability. See Ford
Motor Co. v. Hunt, 26 Va. App. 231, 237-38, 494 S.E.2d 152,
155 (1997) (applying "two causes" rule even though claimant's
treating physician opined that disability was "mainly" caused by
non-work-related condition). Thus, under the "two causes"
rule, full benefits are allowed for claimant's disability. Henrico
County School Board v. Cathy Mae B. Etter, Record No.
1317-00-2 (September 25, 2001). WP
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A claimant's proof of the required causal connection must
go beyond mere conjecture. Southall v. Eldridge Reams, Inc., 198 Va. 545,
548, 95 S.E.2d 145, 147 (1956)."Possibility is not enough,"
when proving causation. Eccon Company v. Lucas, 221 Va. 786, 791, 273 S.E.2d 797,
799 (1981); Rust Engineering Co. v.
Ramsey, 194
Va. 975, 76 S.E.2d 195 (1953) ; Wellmore
Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16,
1999). WP
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A Possible Causal Connection is Not Enough. The
Workers' Compensation Commission did not err in finding that claimant
failed to prove that certain medical expenses incurred by her since 1996
were causally related to either her August 3, 1979 or August 13, 1981
compensable injuries by accident. Claimant relies solely upon a letter
from an orthopedic surgeon stating, “It is possible that the
cervical spine problem did contribute to the patients [sic] shoulder and
scapula problems as the two are often related.” This doctor did not
express his opinion regarding causation with any degree of reasonable
probability or medical certainty. Rather,
he merely raised the "possibility" of a causal relationship.
It is well established that "[a] medical opinion based on a
'possibility' is irrelevant [and] purely speculative."
Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419,
421 (1980). the commission was entitled to conclude that the evidence
failed to prove that the medical treatment at issue was causally related
to either of claimant's compensable work-related accidents. Joyce
Ann Myers v. Anheuser Busch, Inc., Record No. 1428-99-1
(November 23, 1999). WP
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Evidence in the record was sufficient to prove
that claimant's 1993 compensable back injury caused the current condition
suffered by the claimant. The claimant's symptoms were in the same locations as the
symptoms from the original injury, his symptoms persisted to the present, and he remained
under the same doctor's treatment since 1993. The commission had awarded the claimant
temporary total disability awards through June 16, 1996, thereby establishing the causal
relationship at least through that date. There was no evidence of any new specific
intervening injury. Although claimant's doctor gave an affirmative response to a question
asking whether he agreed that it was just as probable the L5 disc rupture
was caused by cumulative or specific events at his new employment as attributable to the
1993 work accident, the doctor also stated, "Patient current complaints are related
to 3-29-93 injury." Other notes refer to the new herniation as a "recurrent
L5 disc herniation." Wellmore
Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16,
1999). WP
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The commission did not err in finding that
claimant proved that his herniated lumbar disc was causally related to his
September 2, 1997 injury by accident. The medical record repeatedly refers
to the onset of symptoms following a work-related lifting incident on
September 2, 1997. The claimant informed the physicians that he performed
heavy labor and injured his back and he reported chronic symptoms for
three months. The claimant told his supervisor about the injury and told a
doctor about a previous injury in August 1996 but that the injury
resolved. Claimant did not have any problem after that until September
1997. A doctor informed another doctor "of back pain which seems to
date to September of 1997. . . ." This doctor detailed a history of
lifting a 12-inch block on September 2, 1997, and then an onset of acute
low back pain. He noted that the claimant continued to work and that the
symptoms varied with his work activities. Other health care providers have
also reported the September 1997 work injury as the source of the current
symptoms. He has had progressive pain since that time.
Claimant's testimony, coupled with the medical records and histories the
doctors, constitutes credible evidence from which the commission could
reasonably infer that claimant's herniated disc was causally related to
the September 2, 1997 injury by accident. Berry
Enterprises, Inc. v. Rodney A. Johnson, Record No. 1213-99-3
(October 5, 1999). WP
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The commission did not err in
finding that claimant proved that her cervical disc condition and March
2, 1998 surgery were causally related to her compensable July 17,
1996 injury by accident. The accident resulted in a cervical and
thoracic strain. She testified that a 264 pound patient rolled onto her
arm. At that time, she initially felt pain in her arm and neck, and later
felt numbness. during the fifteen-month period after the July 1996
accident, claimant was in a great deal of pain and required the assistance
of other employees to help her with her duties. Claimant also limited her
activities outside of work due to episodes of pain. Claimant admitted that
she did not seek further medical attention between July 1996 and October
1997 for her neck or shoulder problem. A finding of causation is supported
by the medical record. Dr. Bradner . . . confirmed that the treatment
beginning October 27, 1997, was related to the July 1996 work accident.
Dr. Ayres . . . recorded an accurate history of the . . . accident and
[claimant's] ensuing symptoms. . . . Although he made no specific
statement regarding causation, his diagnosis of the chronic strains
juxtaposed to the accurate history certainly implies a causal
relationship. Dr. Kiluk . . . provided an Attending Physician's Report
which specifically supported the causal relationship. The commission did
so and accepted the opinions of Drs. Bradner, Ayres, and Kiluk, while
rejecting the contrary opinion of Dr. Thompson, who never examined or
treated claimant. The medical records and opinions of Drs. Bradner,
Ayres, and Kiluk, along with the testimony of claimant and her co-worker,
constitute credible evidence supporting the commission's decision.
"[T]he commission was free to credit claimant's testimony at the
hearing as a basis for its finding of causation. The fact that contrary
evidence may appear in the record 'is of no consequence if there is
credible evidence to support the commission's finding.'" Dollar
General Store v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155
(1996) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991)). Heritage
Hall Blackstone v. Henley, Record No. 0036-99-2 (October 19,
1999). WP
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Claimant’s condition,
though in part due to congenital abnormality of the craniocervical
junction, was the direct result of a fall at work. The claimant’s doctor stated that the surgery
performed to correct the abnormality was the direct result of this fall. The surgery would not have been performed had she
not fallen. As the treating neurosurgeon, the doctor’s opinions were entitled to be
given great weight by the commission. See Pilot
Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986).
The commission is also free to consider the testimony of a claimant
in determining causation, especially where the medical testimony is
inconclusive." Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,154
(1996).
Claimant's doctor recorded a history that claimant's
pain after the accident was of abrupt onset, that it affected claimant's
lumbar spine, and that it had a radicular quality. Claimant testified that
although he had suffered from previous back pain, the pain
he felt after the accident was much more intense than anything he
had ever experienced before. A neurosurgeon, diagnosed a disc
herniation at the L3-4 level. Claimant testified that although some of his
pain abated after the surgery, he still suffers from back symptoms and has
not fully recovered. Claimant's testimony and the medical records provide
credible evidence to support the commission's finding that the medical
treatment received by claimant after the accident was causally related to
that accident. Harman
Ceiling and Partitioning Co. v. Lusk, Record No. 0612-99-3 (July
20,1999). WP
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No doctor
stated that the claimant's non-ischemic central retinal vein occlusion in his left eye was
caused by exposure to welding flashes, or was the result of corneal abrasions sustained at
the time of the flashes. The closest any doctor comes on this record to such a statement
is the statement of a doctor that claimant's retinal condition "appeared to develop
in association with [claimant’s] ocular injury." In the immediately preceding
sentence, the doctor’s report stated that central retinal vein occlusion is often of
unknown cause. At most, the doctor was
stating no more than a temporal association between the claimant's corneal abrasions
and the development of the central retinal vein occlusion. At most, there is an
undefined temporal association between the two conditions.
Such a conclusion is not sufficient to find the necessary causal relationship
between the claimant's corneal abrasions and his retinal condition. Lynn J. Dempsey v. Enerfab
Corporation, Record No. 1894-98-2 (February 2, 1999).
The illegality defense is based on the principle that a
party who consents to and participates in an illegal act may not recover from other
participants for the consequences of that act. Miller v. Bennett, 190 Va.
162, 164-65, 56 S.E.2d 217, 218 (1949). In Miller v. Bennett, 190 Va. 162, 56
S.E.2d 217(1949), the court held that the estate of a woman, who died after participating
in an illegal abortion, could not recover damages for wrongful death from the person who
performed the abortion procedure. This holding was based on the fact that the
direct cause of the decedent's death was the illegal conduct in
which she consensually participated. The illegality defense will be applied to bar
recovery if the evidence shows that the plaintiff freely and voluntarily consented to
participation in the illegal act, without duress or coercion. Trotter v. Okawa, 248
Va. 212, 216, 445 S.E.2d 121, 123-24 (1994). As with other defenses, the party
raising the illegality defense has the burden to establish it. A determination of
whether a person has engaged in an illegal act, for purposes of the illegality defense, is
an objective inquiry. See Zysk v. Zysk, 239 Va. 32, 35, 404 S.E.2d 721, 722 (1990).
In Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990), the court held that a woman who
had contracted a sexually transmitted disease during premarital sex could not recover
damages from her partner. The act of sexual intercourse was both consensual and illegal.
The court explained that "courts will not assist the participant in an
illegal act who seeks to profit from the act's commission." Id. at
34, 404 S.E.2d at 722. See also, Eagle, Star and British Dominions Ins. Co. v. Heller,
149 Va. 82, 140 S.E. 314 (1927), in which the court held that a convicted arsonist could
not recover under an insurance policy for damages to a building that he had burned. Id.
at 105-06, 140 S.E. at 321. See Benjie Godbolt v. Robert W.
Brawley, Et al., Record No. 950105 (November 3, 1995).
Concurrent disability.
During the period in dispute, claimant had not been released to return to her pre-injury
employment. Although claimant's surgery produced a concurrent disability, the
evidence established that she had not fully recovered from her compensable injury.
The dates of claimant's recovery period for the intervening injury were June 8, 1994 to
July 15, 1994, a period prior to Dr. Dunstan's release of claimant to her pre-injury
employment on August 4, 1994. Thus, the commission did not err in holding employer
responsible for compensation during the disputed period. Lynchburg General
Hospital v. Antonia Spinazzolo, Record No. 0343-95-3 (March 26,
1996).
Employer bore the burden of proving, on its change-in-condition
application, that claimant's ongoing pain and related disability are not causally related
to her compensable injury. Employer failed to meet its burden. Claimant
had a diagnosis of fibromyalgia prior to her compensable injury, and claimant's treating
physician opined that her pre-existing fibromyalgia played a greater role in her inability
to return to full-duty employment than did her mechanical back problem. However, a
rheumatologist believed that claimant's mechanical back problem was responsible for her
pain and that "the back problem is fanning the fibromyalgia." On October 9,
1997, the treating physician reported that "it's not really clear what the source of
[claimant's chronic pain problem] is; that is, it could be related to her chronic
myofascial pain; it may be related to scar tissue in her back or just a chronic muscular
problem." On November 6, 1997, however, less than a month later, and without further
examining claimant, and without articulating any basis for a different opinion, the
treating physician opined that claimant's pain was not related to her accident of
September 7, 1994, but that her chronic pain problem stemmed from the pre-existing
fibromyalgia. Although the opinion of the treating physician is entitled to great
weight, see Pilot Freight Carriers v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986), "[m]edical evidence is not necessarily conclusive,
but is subject to the commission's consideration and weighing." Hungerford
Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991). Given
the absence of any further examination of the claimant or an additional report supporting
the treating physician's change of opinion, the commission was free to reject the
treating physician's opinion as to causation. Once the commission rejected this
opinion, no evidence in the record proved that claimant's ongoing disability was not
causally related to her compensable injury. Additionally, a neurologist was unable to
conclude that claimant's ongoing pain was caused solely by her pre-existing
fibromyalgia.
The neurologist's testing resulted in objective findings which implicated sources for
claimant's ongoing pain other than, or in addition to, claimant's
fibromyalgia. Mary Washington
Hospital v. Patricia B. Holloway, Record No. 1582-98-2 (March 30, 1999).
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The exacerbation of a pre-existing injury constitutes
a new compensable
accident where it arises out of and in the course of employment. See Ohio Valley
Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985) (a new injury which
exacerbates a previous condition resulting in accelerated disability is compensable).
Where an employee's accident causes increased injury and disability, even though to the
same anatomic area of a previous condition which continued to be symptomatic, the second
accident establishes an independent injury under the Workers' Compensation Act where it
arises out of and in the course of the employment. See Pelerin v. Hematology and
Oncology Assocs., Ltd., 67 O.I.C. 212 (1988). A. D. Stowe v. Otis Wayne Ricks,
Record No. 2704-98-1 (April 27, 1999). WP
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The commission was unwilling to infer causation
under the facts of this case. Liddell
admitted that she suffered from significant
pre-existing shoulder problems. On
September 30, 1996, Dr. [Robert] Stinger
indicated that [Liddell's] work injury had
resolved. [Liddell's] rotator cuff tears
were not diagnosed until March 1997. At
that time, Liddell was diagnosed with a
rotator cuff tear of the right shoulder as
well as the left shoulder, even though there
is no evidence that the right shoulder was
injured at the time of her industrial
accident. Under these facts, we can only
speculate whether the claimant's left
rotator cuff tear was caused by the work
accident . . . .
The commission's findings are amply supported by the
record. Based upon the lack of any persuasive medical evidence
to connect Liddell's left shoulder rotator cuff tear with her
compensable work injury, we cannot say as a matter of law that
her evidence sustained her burden of proving causation. Ruth
Liddell
v.
INOVA Fairfax Hospital, Record No. 2746-98-4 (May 18, 1999). WP
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"A
finding that a pre-existing condition was accelerated or aggravated by
an injury sustained in an industrial accident establishes a causal
connection between the injury and the disability and the disability
resulting therefrom is compensable under the Workers' Compensation
Act." Corning, Inc.
v. Testerman, 25 Va. App. 332, 340, 488 S.E.2d 642, 645 (1997)
(citations and internal quotations omitted). Basic
Construction Company v. Hamilton, Record No.
2844-98-1 (August 17, 1999). WP
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On
April 29, 1996, claimant strained his back while working in a manhole. He
felt a "bad pop" in his back and a "shock" from the
"top of [his] head to the bottom of [his] feet." claimant had a
history of spondylolisthesis and prior back injuries. an MRI exam on May
3, 1996, revealed Grade I spondylolisthesis at L5-S1, minimal disc
protrusion at L3-4 and L4-5 with degenerative disc disease, and
"findings suspicious for herniated nucleus pulposus." Another
MRI several weeks later revealed a bulging disk at C4-5 and C5-6 and a
herniation at C6-C7. On October 9, 1996, claimant’s treating physician
performed a lumbar fusion at L4-5 and L5-S1. Claimant’s neck and arm
complaints continued and claimant’s doctor believed the back injury and
neck injury and treatment was causally related to the work-related
incident on April 29, 1996. Claimant underwent anterior cervical
diskectomy on February 26, 1997. Although another doctor disagreed with
the treating physician’s opinions on causation, credible evidence in
the record established a causal connection between the accident on April
29, 1996 and claimant's continued back disability and treatment and his
neck injury and treatment. "`So long as a causal relationship
between the industrial accident and the . . . [treatment rendered] is
shown, the employer is financially responsible for the medical attention
which the attending physician deems necessary.'" Papco Oil Co. v.
Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg
Foundry Co. v. Goad, 15 Va. App. 710,714, 427 S.E.2d 215, 217-18
(1993)). Claimant was treated conservatively at first before surgery for
his injuries caused by his accident was attempted. Claimant's treatment
was necessary and reasonable. "Whether an employer is responsible
for medical expenses . . . depends upon . . . (3) whether the treating
physician made a referral to the patient." Volvo White Truck Corp.
v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). When
claimant’s treating physician decided to relocate his practice, he
recommended Dr. Joiner for further treatment but claimant requested a
referral to Dr. Knox and Dr. Mathews. The treating physician, in
attempting to accommodate the wishes of a rehabilitation nurse and
claimant, created a situation where the nurse believed the referral was to
Dr. Joiner and claimant believed the referral was to Drs. Knox and
Mathews. Drs. Knox and Mathews became claimant's authorized treating
physicians. City
of Martinsville v. Timothy Scott Turner, Record No.
2753-98-2 (July 27, 1999). WP
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Sec. 65.2-402(C) presumption requires proof of cause. After
30 years with the fire department, Claimant was diagnosed with prostate
cancer, an ordinary disease of life of unknown etiology. Claimant's evidence, however, documented an exposure to
cadmium, a substance identified as carcinogenic by the International
Agency for Research on Cancer (IARC), as a suspected cause of prostate
cancer. Code Sec. 65.2-402(C), provides, in pertinent part, that “prostate
cancer, caused by a documented contact with a toxic substance that a . . .
fire fighter . . . has encountered in the line of duty and that causes . .
. any health condition or impairment[,] . . . shall be presumed to be an
occupational disease, suffered in the line of duty, that is covered by
this title, unless such presumption is overcome by a preponderance of
competent evidence to the contrary. For
the purposes of this section, a ‘toxic substance’ is one which is a
known or suspected carcinogen, as defined by the International Agency for
Research on Cancer [IARC], and which causes, or is suspected to cause, . .
. prostate . . . cancer.” Code Sec. 65.2-402
(C) explicitly
provides that the presumption of occupational disease applies to prostate
cancer "that is caused by a documented contact with a toxic
substance." Claimant was not entitled to the statutory presumption
of occupational disease because he did not prove that exposure to the
toxic substance cadmium "caused or contributed to cause, his prostate
cancer." Newell
E. Whitehead, Jr. v. City of Portsmouth FD, Record No. 2975-98-1
(July 27, 1999). WP
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Need for Medical Opinion on
Causation Issue. The Workers' Compensation Commission
("commission") did not err in finding that the claimant failed
to prove that (1) his varicose veins were caused by a physical therapy
session on September 19, 1997 necessitated by his compensable August 5,
1997 left knee injury; and (2) his post-September 25, 1997 disability was
causally related to his compensable August 5, 1997 injury by accident.
There was no opinion from any physician causally relating the
claimant's varicose veins or claimed disability to his accident or his
physical therapy for his left knee injury sustained in that
accident. For the Commission to infer such a causal relationship
would be mere speculation without any expert guidance from the
physicians who have examined the claimant. Vagharshak
A. Vartanian v. Advantage Auto Stores, Record No. 2048-98-4
(September 28,1999). WP
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The commission did not err in
finding that claimant's generalized dystonia is causally related to her
industrial accident of October 23, 1990. Claimant, a preschool teacher,
fell as she was entering her vehicle, which was parked in the driveway of
a student she was visiting in the course of her employment. Claimant
received six stitches on her head. In addition to the laceration on her
head, claimant suffered a sore and stiff back and neck. Claimant's back
pain did not abate over the years and she developed spastic, uncoordinated
patterns of movement ultimately diagnosed as dystonia. Although claimant's
earlier physicians had not accurately diagnosed claimant's condition, the
commission was persuaded by Dr. Grill's observation that a person
suffering from a movement disorder may go undiagnosed for years, unless
detected by a physician experienced in the field. The commission resolved
the various conflicts in the evidence and found credible evidence
establishing a causal relationship between the claimant's work-related
trauma and the dystonic symptoms she experienced. Fairfax
County School Board v. Sally Ann Presti, Record No. 3010-98-4
(October 19, 1999). WP
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Claimant fell, attempted to
break her fall with her right hand, and hit her chin on the sidewalk. She
suffered abrasions to her right hand and chin. Subsequent medical
treatment revealed that claimant was suffering from an abscess in the
psoas muscle. Initially, her treating physician found no obvious cause of
the abscess, but later, an unnamed consultant on infectious diseases
suggested as follows: "Staph aureus most likely developed [as a
result of] seeding from a transient bacteremia [at] hand scrape upon fall
4/3," resulting in a psoas abscess. The treating physician then
stated that the infectious disease consultant had opined that claimant's
staph infection was likely derived from the abrasions she sustained in the
April 3, 1998 fall. The treating physician further stated that he did not
have "any other explanation for why [claimant] developed a staph
abscess in her psoas." The treating physician concluded that
"attributing the staph abscess to a bacteremia from such a scrape
would be certainly possible. I would support that hypothesis given no
other information." An Associate Professor in the Division of
Infectious Diseases at Virginia Commonwealth University, reviewed
claimant's entire medical file at the request of employer. The Assistant
Professor opined to a reasonable degree of medical certainty that
claimant's right psoas abscess was not causally related to the April 3,
1998 work-related fall, setting forth a detailed explanation for her
opinion. The commission did not err in finding the claimant had failed
to meet her burden of proving the abscess was caused by her compensable
accident. The claimant has, at most, presented evidence that
suggests two or more equally likely causes of the claimant's psoas abscess.
The opinion of the claimant's treating physician is entitled to less
deference for lack of an independent, objective basis for his diagnosis,
we accord the conflicting, expert testimony of the employer's
independent medical examiner at least as much weight as that of the
treating physician. None of the other physicians involved offered an
opinion that any particular cause "more likely than not" caused
the claimant's psoas abscess. Doris
Patricia Cote v. Western State Hospital, Record No. 1390-99-3
(October 26, 1999). WP
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Claimant's treating neurosurgeon, who began treating
claimant in July 1997 and twice performed surgery on claimant's back,
opined that it was "more likely than not" that claimant's L4-5
disc herniation was caused either directly by the June 23, 1997 injury by
accident or constituted "a natural progression or deterioration"
of the condition caused by that injury by accident.
Another neurosurgeon, who examined claimant and reviewed his
diagnostic studies upon referral from the treating neurosurgeon, opined
that claimant's need for surgery to repair his L4-5 disc defect was
related to the June 23, 1997 injury. An employer’s expert only examined
claimant three times. Another
doctor did not examine claimant at all and merely reviewed his medical
records. Based upon these medical opinions and the medical records, the
commission did not err in concluding that claimant proved a causal
relationship between the L4-5 disc herniation and his compensable June 23,
1997 injury by accident. Where medical evidence conflicts and the treating physician is
positive in his or her diagnosis, then his or her opinion will generally
be afforded greater weight by the courts. See Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572
(1986). Although claimant, just before his October 1997 myelogram CT, felt
a sharp pain when he rolled from his back to his left side while on his
couch at home, the medical records, which documented claimant's
ongoing and continuous back pain before October 1997, and the
opinions of the treating neurosurgeon and the doctor to whom claimant was
referred by the treating neurosurgeon
constitute credible evidence to support the commission's finding
that the sharp pain claimant felt in October 1997 was merely a part of
the ongoing symptoms he had experienced since the June 23, 1997 accident
and did not constitute a new injury. New
River Castings Company v. James Maple, Record No. 1552-99-3
(November 16, 1999). WP
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Employer’s counsel was guilty of the late filing
of a medical report. The deputy commissioner admitted the doctor’s
report into evidence but provided claimant with ample opportunity to
cross-examine the doctor before the record closed.
Claimant elected not to cross-examine the doctor in any manner
whatsoever. Having chosen not
to take advantage of the opportunity to cross-examine the doctor regarding
the medical report, claimant cannot claim that she was prejudiced by the
late filing. The commission did not abuse its discretion in admitting
into evidence the medical report that had been filed late. The
commission also did not err in denying claimant disability benefits
after March 31, 1996 and in denying medical benefits for treatment
incurred after April 25, 1996. In
doing so, the commission relied upon the opinions and medical records
of two doctors and rejected the opinions of two other doctors. The
medical records and opinions of the two doctors relied upon support the
commission’s findings that claimant was not disabled after March 31,
1996 due to the effects of her exposure to Lysol Brand Concentrate at work
in February 1996; that the effects of that exposure ended by April 25,
1996; and that her symptoms thereafter were due to pre-existing conditions
or other causes. The commission articulated sound reasons for giving
little probative weight to the contrary opinions of the two other doctors.
“Medical evidence is not necessarily conclusive and is subject to the
commission’s consideration and weighing.” Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
“Moreover, “[q]uestions raised by conflicting medical
opinions must be decided by the commission.” Penley v. Island
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). Joleane
Dutzman v. J. Douglas Wooddell, DDS, Record No. 1735-99-4
(November 16, 1999). WP
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Based upon the lengthy delay between the time of claimant's compensable
accident and the first documentation of her neurological complaints, the
Workers' Compensation Commission did not err in finding that claimant
failed to prove that her medical treatment after July 17, 1996 and her
disability beginning February 20, 1998 were causally related to her
compensable July 15, 1996 injury by accident. Although claimant testified
that she continuously complained for a year and a half about her
headaches, dizziness, and nausea to her doctor who saw her frequently, the
extensive medical record reflects otherwise. Claimant's neurologic
complaints did not begin until at least nineteen months after her July
1996 accident. Shirley
P. Keesee v. Wise County School Board, Record No. 2273-99-3
(February 8, 2000). WP
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Claimant met his burden of proving that the contested surgery,
treatment, and disability were causally related to the July 12, 1997
injury by accident. Claimant had a pre-existing degenerative cervical
spine. He suffered severe symptoms of neck pain in the late 1980s,
and failed to report that history to any of the physicians who have
examined him for the present injury. However, claimant had not had
any significant symptoms of neck pain or disability for the nine years
preceding the present work injury. After his accident, he sought
immediate medical attention, and the treating physicians have documented
progressive neck symptoms from the inception of his injury. The claimant
was able to work his normal job for the five years preceding the work
accident, but was disabled subsequent thereto. The treating
neurosurgeon, was aware that the claimant suffered from pre-existing
cervical spondylosis, but was unaware that claimant had suffered from
neck symptoms in the remote past. The commission did not err in
finding a causal relationship or that her lack of knowledge of such remote
symptoms did not seriously undermine her opinions regarding causation,
reasonableness, and necessity of the surgery. The claimant's testimony and
the temporal relationship between the claimant's injury, neck symptoms,
disability, surgery, and recovery, are compelling. Claimant's medical
records and the neurosurgeons opinions, coupled with claimant's testimony,
constitute credible evidence to support the commission's decision. Sentara
Norfolk General Hospital v. Melvin Spruill, Record No. 2971-99-1
(April 4, 2000). WP
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The commission did not err in finding that claimant's disability was
not causally related to his October 20, 1996 injury by accident. On
October 20, 1996, while Cook was walking through an unfamiliar portion of
the mine, he "misjudged" the height of the roof line and hit his
head on the roof. Cook testified that the blow knocked him down and that
he experienced pain in his neck. Cook admitted that he was seen by an
emergency room physician on September 8, 1996 for neck and left arm pain.
The emergency room records reflect Cook stated that he hit his head two
weeks prior to September 8, 1996 and that he continues to experience neck
and shoulder pain. At the hearing, Cook denied having previous problems
with his neck or receiving treatment for neck pain "in that location
prior to the incident." He admitted, however, that he has had
"sprains and strains" in that area. the commission, after
weighing the medical evidence, rejected the opinions of Drs. Wood and
Sutherland. The record established that Dr. Wood was not aware of Cook's
prior complaints of neck and shoulder pain and resultant medical treatment
which occurred during the weeks prior to the October 20, 1996 injury by
accident. In addition, Dr. Wood was not aware of Cook's July 1996
accident, where he hit his head and complained of neck pain that did not
resolve. Where medical opinions are based upon an incomplete or
inaccurate medical history, the commission is entitled to conclude that
those opinions are of little probative value. See Clinchfield Coal
Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d 15, 16 (1985); see also
Sneed v. Morengo, Inc., 19 Va. App. 199, 205, 450 S.E.2d 167, 171
(1994) ("Whenever a physician's diagnosis flows from an assumption
that rests upon a faulty premise, such as misinformation provided by a
claimant, the commission may refuse, and often will be required to refuse,
to attribute any weight to that opinion."). George
Montgomery Cook v. Island Creek Coal Company, Record No. 2357-99-3
(April 25, 2000). WP
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The commission did not err in finding claimant presented sufficient
evidence that the medical treatment he received after March 1, 1997 was
causally related to the January 27, 1996 industrial accident in which
he was injured. A March 1, 1997, slip at work did not cause him any
additional problems. In fact, the claimant did not end up actually
falling. Dr. Meade, in his December 1, 1997, letter, stated that this was
not a new injury, but rather the result of the claimant's pre-existing ACL
injury and his torn lateral meniscus. Ace
House Movers, Inc. v. Michael N. Jackson, Record No. 1494-99-1
(May 9, 2000). WP
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De Facto Awards. Burden of Proof Shifts
to Employer. Code Sec. 65.2-701(A)
authorizes de facto awards and the commission did not err in recognizing
their validity. National Linen Service v.
McGuinn, 5 Va. App. 265, 326 S.E.2d 187 (1987) (en banc). De
facto awards are premised on Code Sec. 65.2-701(A).
The statute reads, in pertinent part: "If after 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 agreement in the form prescribed by the Commission
shall be filed with the Commission for approval." In McGuinn,
we held that where the employer has stipulated to the compensability of
the claim, has made payments to the employee for some significant period
of time without filing a memorandum of agreement, and fails to contest the
compensability of the injury, it is "reasonable to infer that the
parties ha[ve] reached an agreement as to the payment of
compensation," and a de facto award will be recognized. McGuinn,
5 Va. App. at 269-70, 362 S.E.2d at 189. Assuming arguendo that Code Sec. 65.2-701(A)
is vague, our interpretation of it in McGuinn
sufficiently narrows and clarifies it with respect to de facto awards to
pass constitutional challenge. See Wainwright v. Stone, 414 U.S.
21, 22-23 (1973) ("For the purpose of determining whether a state
statute is too vague and indefinite to constitute valid legislation 'we
must take the statute as though it read precisely as the highest court of
the State has interpreted it.'" (quoting Minnesota, ex rel.
Pearson v. Probate Ct. of Ramsey County, 309 U.S. 270, 273 (1940))); Commonwealth
v. Rivera, 18 Va. App. 103, 109, 442 S.E.2d 410, 413 (1994) ("[A]s
a state court, we may construe our statutes to have a limited
application if such a construction will tailor the statute to a
constitutional fit."); see also Perkins v. Commonwealth,
12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991). Any vagueness in the
statutory language is thus remedied. On April 20, 1997, claimant
suffered an injury when she tripped on a buckled rug and fell on her left
knee. The carrier voluntarily paid claimant temporary total disability
benefits from April 20, 1997 through August 23, 1997. On November 6, 1997,
claimant filed a claim for disability benefits, alleging compensable
injury resulting from the April 20, 1997 accident. The employer and its
carrier stipulated that claimant had suffered a compensable injury as a
result of the accident and that she was totally disabled through June 10,
1997. The commission did not err in finding that voluntary payment of
benefits to claimant for the sixteen-week period from April 20 through
August 23, 1997 constituted a de facto award; as a consequence, the
commission did not err in finding that employer bore the burden of
proving that claimant's disability in the period following June 10, 1997
was not causally related to the accident. Ryan's
Family Steak Houses, Inc., v. Gowan, Record No.
1435-99-3 (May 16, 2000). WP
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Claimant sustained his compensable injury while employed and prior to
his absence. The absence for which he was terminated was due to the
compensable injury. Claimant's wage loss resulted from his
compensable injury, not from his absenteeism. C & P Telephone
v. Murphy, 12 Va. App. 633, 406 S.E.2d 190 (1991), aff'd en banc, 13
Va. App. 304, 411 S.E.2d 444 (1991) clearly establishes that employees are
responsible for wage loss properly attributable to their wrongful conduct.
See 12 Va. App. at 639-40, 406 S.E.2d at 193. However, as explicated in Potomac
Edison Co. v. Cash, 18 Va. App. 629, 446 S.E.2d 155 (1994), Murphy
represents a narrow rule; where an employee's wage loss is not
attributable to his wrongful conduct, the fact that the employee was
discharged for such conduct is not in itself sufficient to preclude him
from receiving benefits. See 18 Va. App. at 633, 446 S.E.2d at 157. In Murphy,
the Court held that where a disabled employee is terminated for cause from
selective employment offered or provided by his employer, any subsequent
wage loss is properly attributable to the employee's wrongful conduct
rather than his disability, and he is therefore barred from subsequently
seeking wage indemnity benefits. See 12 Va. App. at 639-40, 406 S.E.2d at
193. The Court revisited Murphy in Cash, in which it held
that Murphy did "not bar [a] claimant's application for
benefits after termination for cause when [the] claimant subsequently
suffer[ed] total disability caused by the prior work-related injury."
18 Va. App. at 632, 446 S.E.2d at 157. William
Hazel Companies v. Jesse R. Creswell, Record No. 2477-99-2 (May
23, 2000). WP
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In an earlier decision, the commission found that
Harris suffered from a compensable occupational disease in that she had
developed an allergic reaction to the chemicals in her workplace. The
employer did not appeal that decision. Accordingly, any further
consideration of whether claimant's original occupational disease is
causally related to her employment is barred by res judicata. See K
& L Trucking Co., v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299,
302 (1985) (finding that the doctrine of res judicata is applicable to
decisions of deputy commissioners and the full commission). Thus, the
issue now on appeal is whether the evidence proves that claimant's current
disability and allergic reactions are causally related to the industrial
disease. Claimant's chemical sensitivity and her current sensitivity to
other allergens in the environment are the same sensitivity that she
developed due to the exposure to chemicals in the workplace. The
commission's finding that claimant's chemical sensitivity is causally
related to her exposure to the x-ray chemicals is supported by credible
evidence. The finding that claimant is partially disabled because she
has become "sensitized" as a result of her exposure to the
chemicals in her pre-injury work is supported by credible evidence. In
concluding that claimant has not recovered from her disability and,
therefore, has not obtained her pre-injury status, the commission relied
on its holdings in Blevins v. Smyth County Vocational School, VWC
File No. 185-57-17 (July 1, 1998), and Pruett v. J & R Electric
Contractor, Inc., VWC File No. 160-30-44 (Nov. 30, 1993). In Blevins,
the claimant suffered from hypersensitivity pneumonitis. The claimant's
treating physician opined that the claimant was "not disabled and has
the capacity to do any other job in which such exposure would not be
required." The physician further stated that the claimant "has
been suffering from recurrent bouts of hypersensitivity pneumonitis
related to exposure to work place allergens to which he has been
sensitized. With removal of that exposure his hypersensitivity has
resolved." The commission found, based on the physician's report,
that the claimant was partially disabled. In Pruett, the claimant
was an electric motor winder. In that capacity, the claimant frequently
was exposed to fumes from soldering and welding, dipping the motors into a
vat of epoxy or hot varnish, and cleaning the housing. The claimant began
to experience respiratory problems and was diagnosed with industrial
asthma. His treating physician opined that his condition was caused by
exposure to fumes in the workplace. In finding that the claimant was
disabled, the commission noted that the claimant's treating physicians
opined that the claimant could not return to his pre-injury work because
"he has become sensitized to chemicals to which he is exposed in that
employment. Therefore, he has not reached his pre-injury employment status
inasmuch as he was not sensitized before he became disabled." The
commission's rationale in Blevins and Pruett is sound and
persuasive. Credible evidence supports a finding that claimant is
currently partially disabled in that she continues to suffer from symptoms
related to the allergic chemical reaction and is unable to perform her
pre-injury work. the commission did not err in determining claimant
adequately marketed her residual work capacity. The commission found
that claimant contacted, on average, at least two employers per week.
She actively searched computer databases and newspaper classified
advertisements. Although the rehabilitation counselor testified
that claimant's school class schedule was an obstacle in obtaining
employment, claimant testified that, if she found suitable employment that
conflicted with her class schedule, she would withdraw from her classes.
The evidence sufficient to support the commission's finding that claimant
made a reasonable effort to market her residual capacity. Tidewater
Physicians Multispecialty v. Harris, Record No. 2207-99-1 (May 30,
2000). WP
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Pre-existing Condition. The employee was a diabetic dependent
on insulin for twenty years. While working for the employer, he
tripped on a 3 by 1/2 inch bolt that protruded from the floor. The
employee noted his great toe was sore but found nothing visibly wrong. He
inspected his foot again that evening and the next morning before
returning to work, but again he found nothing wrong. The employee
regularly checked his feet and two days later observed a black spot on the
underside of his toe. The record supports the commission's finding that
the employee injured his toe at work and his diabetes aggravated the
injury to the extent of requiring amputation. The amputation occurred
within two weeks of the injury, and medical evidence established the
causal connection. Dan
River, Inc. v. Sammy Terry, Record No. 3020-99-2 (June 20, 2000). WP
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The commission did not err in finding: (1) that claimant established an
"injury by accident" to his right foot on September 1, 1997; and
(2) that medical treatment rendered in August 1998 was causally related to
that "injury by accident." Claimant testified that on September
1, 1997, while working as a groundsman, he was injured when a tree fell on
his right foot. Two witnesses corroborated this account. Claimant sought
no medical treatment for almost a year. The medical records set forth a
record of an injury a year earlier followed by intermittent pain.
This evidence was sufficient for the commission to find an injury by
accident and causation. "The testimony of a claimant may also be
considered in determining causation, especially where the medical
testimony is inconclusive." Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d
152, 154 (1996). Thus, the court held in Cridlin that
where "the [medical] reports reflect only the results of claimant's
physical examination and do not purport to establish the cause or causes
of her injury[,] . . . the commission was free to credit claimant's
testimony at the hearing as a basis for its finding of causation."
Id. at 177, 468 S.E.2d at 155 (citation omitted). The record in
this case does not establish that the medical issue was so complex that
the commission made findings in an area that could only be properly
decided by medical experts. Strickly
Stumps, Inc. v. George Robert Enoch, Record No. 0523-00-4
(November 21, 2000). WP
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The commission did not err in finding that
claimant's disability was related to his April 4, 1997 injury by accident
and that the medical treatment provided by physicians other than
claimant's treating physician was unauthorized. A doctor's
statement that a certain condition is probably connected to the injury
means there is a reasonable likelihood of causation, which "is
sufficient to permit a trier of fact to accord the statement probative
weight." Cook v. City of Waynesboro Police Dep't, 225 Va. 23,
30, 300 S.E.2d 746, 749 (1983). The commission may also consider
"[t]he testimony of [an employee] . . . in determining causation,
especially where the medical testimony is inconclusive." Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154
(1996). In addition, the commission may rely upon circumstantial
evidence in finding that an injury was caused by a particular accident.
See Van Geuder v. Commonwealth, 192 Va. 548, 557, 65 S.E.2d 565,
570-71 (1951). Claimant testified that his knee pain commenced with the
work effort he was engaged in on April 4, 1997 and was never completely
relieved by the medical treatment he received. The commission reviewed the
medical evidence and found as follows: Dr. Wilhelm has consistently
related the claimant's condition to the work-related incident. Dr. Wilhelm
stated that the claimant suffered a pain syndrome that emanated from, and
started with, the work-related injury. Similarly, both Dr. Camp and Dr.
Soueidan noted the accident, the June 1997 surgery, and subsequent weak
knee problems. Significantly, Dr. Stiles found marked left quadriceps
weakness on August 25, 1997. No medical report advances a different cause.
There is no medical evidence that any treatment was unreasonable or
unnecessary. Claimant presented credible evidence that sufficiently proved
his disabling condition was caused by the April 4, 1997 injury by
accident. Accordingly, the commission's finding that claimant's injuries
were causally connected to his industrial accident was not plainly wrong.
Where an employer initially denies that an injury is
compensable, the employee is entitled to select a treating physician.
See Bassett Burkeville Veneer v. Slaughter, 21 Va. App. 575,
578-79, 466 S.E.2d 127, 128-29 (1996). Once the employee selects a
treating physician, the employee cannot unilaterally change physicians
unless an emergency exists or the commission approves the change. See Goodyear
Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 130, 384 S.E.2d 333,
339 (1989). In a related vein, Code Sec. 65.2-603(C) provides as follows:
If in an emergency or on account of the employer's failure to
provide the medical care during the period herein specified, or for
other good reasons, a physician other than provided by the employer is
called to treat the injured employee, during such period, the reasonable
cost of such service shall be paid by the employer if ordered so to do by
the Commission. The record proved and the commission found that claimant
turned to his wife's insurance plan to pay for his medical treatment. Her
plan required him to use her primary care physician, who referred claimant
to Dr. Wilhelm. The commission found that claimant "had good reason
to treat with [Drs. Wells, Camp, and Wilhelm] because [Marriott] had
declined to accept the claim and payment for these physicians would be
covered by his wife's health insurance." The commission also found
that the treatment was reasonable, necessary and related to his work
injury. Credible evidence in the record supports these findings. Marriott
Int'l,Inc. v. Robert D. Carter,III, Record No. 0680-00-1 (January
9, 2001). WP
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The evidence did not support the finding that
claimant's psychiatric treatment was causally related to his work
injury. "If the expert medical witnesses cannot testify that it is at
least more probable than not that the disease arose out of and in the
course of employment, compensation must and should be denied, not because
the law requires more of medicine than it can produce, but because the law
requires more than simply proof that the disease 'might' have been caused
by a particular result." Westmoreland Coal Co. v. Campbell, 7
Va. App. 217, 224, 372 S.E.2d 411, 416 (1988).
In their concluding opinions, both doctors
indicated they needed additional medical history before rendering an
opinion on the relation of the psychiatric condition to the injury.
The commission erred in finding the medical evidence credible when it
lacked a sufficient base. Clinchfield Coal Co. v. Bowman, 229 Va.
249, 252, 329 S.E.2d 15, 16 (1985), held the commission erred in
attributing weight to medical evidence based upon a faulty premise. The
Court reversed the commission's finding that the doctor was credible
because the doctor's opinion was based on erroneous information supplied
by the claimant. "In Dr. McIlwain's first report, he assumed that the
condition he discovered resulted from the 1978 accident. The basis for
this assumption was the incomplete information furnished by Bowman." Id.
at 251-52, 329 S.E.2d at 16 (emphasis in original). "Whenever a
physician's diagnosis flows from an assumption that rests upon a faulty
premise, such as misinformation provided by a claimant, the commission may
refuse, and often will be required to refuse, to attribute any weight to
that opinion." Sneed v. Morengo, Inc., 19 Va. App. 199,
205, 450 S.E.2d 167, 171 (1994) (citation omitted). The doctors'
reports were insufficient to establish a causal connection between the
employee's work injury and his psychiatric condition beyond mere
conjecture. Howell
Metal Company v. Michael B. Adams, Record No. 1992-00-3 (March 27,
2001). WP
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Claimant had been deemed
"disabled" by the Social Security Administration due to his
pre-existing diabetes, liver problems and other related conditions.
Claimant was receiving benefits for his disability at the time of the
accident. Nonetheless, claimant had been employed by his brother on
a consistent basis prior to the date of the accident. Dr. Reid
diagnosed claimant with memory loss, chronic pain syndrome, and C8
radiculopathy secondary to the 1995 accident. He opined that claimant was
"permanently and totally disabled from gainful employment," due
to the chronic pain syndrome and claimant's inability to walk or change
positions without aggravating the "chronic pain syndrome, the memory
loss, and the severe de-conditioning and specifically triceps
atrophy." Dr. Reid confirmed that the 1995 accident caused
claimant's disability, notwithstanding his extensive medical history,
reasoning that persons with "his diabetes and level of peripheral
neuropathy who are without other injury or illness are known to be able to
function satisfactorily in the workplace. "The evidence here
supports the commission's determination on the issues of employer's
liability for claimant's memory problems and periods of disability. Princess
Anne Builders, Inc. v. Faucette, Record No. 0872-01-1 (November
6, 2001). WP
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