CHANGE IN CONDITION
The threshold test for compensability is whether the employee is
able fully to perform the duties of his pre-injury employment. Celanese Fibers
Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985) (quoting Sky Chefs,
Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d 605, 607 (1981)).
General principles of workman's compensation law provide that in an
application for review of any award on the ground of change in condition, the burden is
on the party alleging such change to prove his allegations by a preponderance of the
evidence. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359
S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 438-39, 339 S.E.2d 570, 572 (1986)).
An employer alleging a change in condition bears the burden of
proving that the claimant is fully able to perform the duties of his pre-injury
employment. See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986).The employer also must specifically allege the grounds
of the change in condition. Only those issues specifically alleged will be
considered. Celanese Fibers Company v. Johnson, 229 Va. 117, 326 S.E.2d 687 (1985).
An allegation the employee was able to return to regular employment did not raise the
issue whether the current disability was causally related to the original compensable
injury. Central Va. Training Center v. Martin, 2 Va. App.188, 342 S.E.2d 652
(1986). An employer must clearly identify the medical report upon which it relies to raise
the issue of causation if it does not incorporate the report by reference and attach it to
the claim. Suite v. Clinchfield Coal Co., 8 Va. App. 554, 383 S.E.2d 21 (1989),
aff'd, 9 Va. App. 492, 389 S.E.2d 187 (1990); Stump Trucking v. Stump, 12 Va. App.
555, 404 S.E.2d 747 (1991).
Pre-existing Condition.
The commission did not err in finding that employer had not met its burden
of proving a change in condition. Claimant, who had a pre-existing chronic
degenerative back condition, suffered an injury to his back. The employer
accepted the claim as compensable and agreed to an award of temporary
total disability benefits up to a particular date but filed a change in
condition application denying disability benefits thereafter.
"Causation is an essential element which must be proven by [an
employee] in order to receive an award of compensation for an injury by
accident under the Virginia Workers' Compensation Act." AMP, Inc.
v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881 (1991). After an
award adjudicating causation becomes final, "absent [a claim of]
fraud or mistake, the doctrine of res judicata bars further litigation of
[the issue of causation]." Id. Thus, "[w]here, as here,
causal connection between an industrial accident and disability has been
established by the entry of an award, an employer has a right to apply for
termination of benefits upon an allegation that the effects of the
injury have fully dissipated and the disability is the result of another
cause." Celanese Fibers Co. v. Johnson, 229 Va. 117, 120,
326 S.E.2d 687, 690 (1985). The employer bears the burden of proving by a
preponderance of the evidence the allegations contained in its application
for a change in condition. See Pilot Freight Carriers, Inc. v. Reeves,
1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986). Having stipulated to
entry of an award for disability resulting from claimant's injury by
accident to his back, the employer may not now argue that the same
disability was solely the result of a chronic condition that pre-existed
the stipulated disability. Causation, once established, is "barred
from relitigation on grounds of res judicata." AMP,
Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881 (1991).
No medical evidence proved that the effects of claimant's work-related
injury by accident have completely dissipated and that claimant's current
disability is caused solely by the natural progression of this
degenerative spine disease or other non-work related cause. Westmoreland
Coal Company v. William Russell, Record
No. 0084-99-4 (November 9, 1999). WP
Version.
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
Version.
Code Sec. 65.2-101
defines a "change in condition" as "a change in the physical
condition of the employee as well as a change in the conditions under which
compensation was awarded, suspended, or terminated which would affect the right to, amount
of, or duration of compensation."
New Injury by Accident vs. Change in
Condition. This issue may arise in cases where the different statutes of
limitations for an injury by accident and change in condition may produce different
results and in cases where the insurer at the time of the original injury by accident is
different from the insurer at the time when the alleged change in condition arises. A
change in condition is a condition flowing from a progression, deterioration or
aggravation of the injury sustained in the original accident. A condition
or injury resulting from a new and separate accident is not a change in
condition. Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977).
On April 13, 1995, claimant sustained a compensable lower back
injury while working as a process specialist for Amoco Foam
Products Company, which was purchased by Tenneco Packaging in
1996. Claimant then settled her claim and the commission approved the
settlement. Claimant suffered from
intermittent back pain thereafter. On February 11,
1997, she felt lower back pain while trying to push a cart after
it had become stuck. Claimant reported that "it was the same thing as
before," and that her old back injury had "flared up on her."
Her doctor diagnosed a "[r]e-aggravation of low back strain" and
noted that Patrick had suffered from left leg pain in the past
as well as back pain. He stated claimant had a recurrence or
exacerbation of her pre-existing lower back problems and that this did
not constitute a new and separate injury. He believed claimant experienced a
re-aggravation of her chronic lumbar strain that had initially
occurred on April 13, 1995. He also stated she had "no new
mechanism of injury." "In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] injury
was an identifiable incident or sudden precipitating event and
that it resulted in an obvious sudden mechanical or structural
change in the body." Morris v. Morris, 238 Va. 578, 589, 385
S.E.2d 858, 865 (1989). "[A]ggravation of an old injury or
pre-existing condition is not, per se, tantamount to a new
'injury.' To be a 'new injury,' the incident giving rise to the
aggravation must in itself, satisfy each of the requirements for
an 'injury by accident arising out of . . . the employment.'"
First Federal Savings & Loan Ass'n v. Gryder, 9 Va. App. 60, 63,
383 S.E.2d 755, 757-58 (1989). The evidence proved claimant never fully recovered from
the 1995 lower back injury and continued to experience chronic
pain and exacerbations of her back condition. Credible medical
evidence proved that the February 11 event caused a "[r]e-aggravation of [Patrick's existing] low back strain" that
was merely an ever worsening of her original injury. Credible evidence supports the commission's
conclusion that claimant's post-February 11, 1997 lower back pain
and disability did not result from a new compensable injury by
accident. Carolyn J.
Patrick
v. Tenneco Packaging, Record No. 0201-99-3 (June 15, 1999). WP
Version.
When an employee applies for reinstatement of disability
benefits based upon a change in condition, the commission must determine: (1)
whether a "change in condition" has occurred as defined in Code Sec. 65.2-101,
that affects the employee's capacity to work, and (2) if so, whether the change is due to
a condition causally connected with the original compensable injury. See King's Market
v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984); Central Va. Training
Center v. Martin, 2 Va. App.188, 342 S.E.2d 652 (1986)(an employee's claim
raises issues of disability and causation. An employer's claim only
raises the issue of disability unless other grounds are specifically alleged).
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
Version.
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
Version.
Where an application for a change in condition is filed for the sole
purpose of presenting additional evidence in support of a claim that has previously
been denied, res judicata will bar reconsideration of the claim. Mize v.
Rocky Mount Ready Mix, Inc., 11 Va. App. 601,401 S.E.2d 200 (1991); AMP, Inc. v.
Ruebush, 10 Va. App. 270, 391 S.E.2d 879 (1990). However, res judicata does not bar a
claim for resumption of benefits when a "change in condition," as contemplated
by the Code, has occurred which has not been previously considered by the commission.
Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986) (the opinion of a treating physician is entitled to great weight)
The employer’s burden of proving that the claimant is fully able to perform
the duties of his pre-injury employment is met by uncontradicted evidence
which establishes that no restrictions have been placed on the claimant's ability to
return to work. Mace v. Merchants Delivery Moving & Storage, 221 Va.
401, 403, 270 S.E.2d 717, 719 (1980)(with unequivocal medical evidence that the claimant
was fully able to return to unrestricted work and the absence of any evidence to the
contrary, the commission could only conclude that the claimant was able to return to work,
regardless of the placement of the burden of proof). Where uncontradicted medical evidence
does not suggest any physical limitation on a claimant, the employer need not also show
that the physician was familiar with the physical requirements of the job and the type of
physical limitations which would prohibit its performance. Id. The Fingles Company v. Richard E.
Tatterson, Record No. 2882-95-1 (July 9, 1996).
Release to "pre-injury
activity" is not necessarily a release to "pre-injury work".
The fact that [claimant] was allowed to return to "pre-injury activity" does not
necessarily mean that he was capable of performing all the duties of his pre-injury work.
Claimant's treating physician did not specifically address work status, and gave no
specific opinion that the claimant was able to perform all the duties of his pre-injury
work, or that he could work without any limitations or restrictions. Hunan Imperial Restaurant v. Han
Trung Lam, Record No. 1990-98-4 (January 26, 1999).
Job descriptions must
accurately set forth how claimant actually performed his job. In
Clinchfield Coal Co. v. Parrott, 22 Va. App. 443, 470
S.E.2d 597 (1996), the Court of Appeals reaffirmed the principle that "'[i]n determining
whether an injured employee can return to his or her pre-injury
employment duties the Commission does not look at how the duties
could ideally be performed, but rather, how the duties were
actually performed.'" 22 Va. App. at 447, 470 S.E.2d at 598-99
(citation omitted). Here, claimant's testimony, which the
commission was entitled to accept, established "how the duties
were actually performed," or in other words, the "normal and
customary manner in which the pre-injury work was performed." Id. at 447, 470 S.E.2d at 599. The employer failed to prove that claimant was able
to fully perform his pre-injury work. Claimant was
restricted from even occasionally lifting in
excess of 70 pounds, but his job as he actually performed it involved, on
occasion, lifting in excess of this amount. Although his doctor
released claimant to perform a job set forth in a job description as
claimant's regular job, his doctor's release was
based upon an incomplete and/or inaccurate job description. Claimant's
testimony supported this fact and the fact that the manner in which claimant actually performed his job
fell outside of his doctor's restrictions. Harman
Mining Corporation
v. John Thacker, Record No. 0267-99-4 (June 8, 1999). WP
Version.
The claimant presented no evidence to contradict the
accuracy of the pre-injury job description offered by the employer, and
employer was under no duty to offer additional affirmative evidence as to
the accuracy of that job description. After reviewing the job description,
three physicians believed claimant could return to his regular job as a
salesman of household appliances. The employer met its burden of proving
that claimant was released to return to all of the duties of his
pre-injury employment. Aiahun
Semere v. R.H. Macy & Company, Record No. 0533-99-4 (July
20, 1999). WP
Version.
Where claimant was provided work within his
restrictions placed on him by his doctor, but chose to exceed his doctor's
restrictions, a resulting aggravation of his compensable injury
is not compensable. Kent A. Derrow v. Owens
Brockway Plastics, Inc., Record No. 1827-98-3 (January 19, 1999).
Where an employee did not file a timely application or demonstrate any
disability during the two-year period following the industrial accident,
that employee could not be awarded compensation for total disability which occurred more
than two years after the injury by accident. Mayberry v. Alcoa Building Products,
18 Va. App. 18, 20, 441 S.E.2d 349, 350 (1994) Compensation for work incapacity is not
awardable for the first seven calendar days of incapacity resulting from an
injury unless certain exceptions are met. See Code Sec. 65.2-509.
Claimant must prove that he sustained more than seven days of work incapacity
during the two-year period immediately following his accident. Thurondie L. Chisholm v.
The Washington Post, Record No. 0786-98-4 (August 25, 1998).
Code Sec. 65.2-708(A)
provides that "[n]o such review [of an award on the ground of change in condition]
shall be made after twenty-four months from the last day for which compensation was paid,
pursuant to an award under this title . . . ." This section requires that claimant's
application alleging a change in condition be filed within twenty-four months from the
last day for which compensation was paid pursuant to an award.
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).
WP Version.
In 1993, claimant sustained compensable injuries to his
neck, back, and left shoulder while employed as a
bartender-manager for employer and an award for temporary total disability was
entered.. Claimant suffered
from chronic active hepatitis C and chronic
obstructive pulmonary disease that placed additional stress on his neck muscles.
By 1996 his doctor believed that, "if he were in fact
disabled from gainful employment, it would be on the basis of
his underlying medical conditions and not due to any permanent
residual from his alleged fall." An FCE caused the doctor to further note that it was "difficult to determine to what
extent his [unrelated] medical conditions [were] affecting his
lifting capacities." In reviewing the FCE, the doctor concluded
that at a minimum, claimant could perform sedentary light work.
Limiting her analysis solely to claimant's work-related injury, the doctor believed that
claimants "work-related cervical thoracic strain
injury [was] permanent and stable." According to the doctor,
claimant's condition had stabilized and his functional disability
rated a "6% whole person impairment." She concluded, based on
her assessment of The Dictionary of Occupational Titles, that claimant could perform a bartending job with certain limitations.
He could not lift more than fifteen pounds occasionally, and he
could not perform repetitive or sustained overhead activities. The doctor also opined that
claimant's unrelated medical conditions
would actually preclude him from returning to any gainful
employment. When an
employer alleges a change in condition warranting termination of
an award, the burden is on the employer to prove the allegations
by a preponderance of the evidence. See Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986). The commission properly found that employer failed to meet this
burden. The doctor opined that the compensable injury alone,
prohibited claimant from regularly lifting more than fifteen pounds
and from performing regular overhead tasks. The definition of disability is "whether the employee is
able fully to perform the duties of his pre-injury employment."
Celanese Fibers v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687,
690 (1985). Employer did not provide a pre-injury job
description. At most the evidence established claimant could perform a
bartender's job with limitations, i.e. not "fully," as a result
of his compensable injury. Therefore, the evidence was insufficient for the
commission to conclude and for the Court of Appeals to hold as a matter of
law that, given the physical limitations arising from claimant's
compensable injury, he could return to his pre-injury
employment. Liz's
Blue Diamond, Inc.
v. Joseph E. Rico, Record No. 1943-98-1 (June 1, 1999). WP
Version.
"General principles of workman's compensation law
provide that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such change to
prove his allegations by a preponderance of the evidence.'" Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1
Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)).Claimant's treating
physician, without explanation, changed claimant's diagnosis from that of
a strain to degenerative disc disease and bulging disc upon the sudden
onset of renewed symptoms. A specialist found no causal connection between
claimant's symptoms and her compensable accident. The commission was
entitled to find that because of his specialty and because the onset and
duration of the symptoms is uncontradicted, the specialist's opinion was
more persuasive than that of the treating physician. In view of the long
gaps between symptoms and treatment following the accident, and the
specialist's expertise, claimant has not met her burden of proving a
change in condition causally connected to her compensable accident.
"Medical 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, 215
(1991). Linda
Dixon v. Woodtech, Inc., Record No. 0459-99-3 (September 7,
1999).WP
Version.
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
Version.
The Commission did not err in finding that claimant's
compensable back injury rather than her unrelated knee injury continued to
disable her from returning to her pre-injury employment and in finding the
opinions of employer's medical experts did not constitute sufficient
evidence to prove that claimant was capable of performing her pre-injury
employment as a courier. Claimant's treating physician and another doctor
examined claimant completely and were actively involved in claimant's
treatment contrary to the employer's physicians. The claimant's doctors
concluded claimant's compensable injury prohibited her from returning to
her pre-injury job. Federal
Express Corporation v. Connie T. Klyver, Record No. 1947-99-2
(December 21, 1999). WP
Version.
The Workers' Compensation
Commission (commission) did not err in finding that employer failed to
prove that claimant was able to return to her pre-injury work as of
September 30, 1998. Claimant's doctor acknowledged that the claimant's
pain complaint is what prevented her from being able to return to her
pre-injury work as a bus driver. Although her doctor admitted that she
relied upon the claimant's statements as to what she could or could not
do, her doctor opined that the claimant's complaints are real, based upon
the doctor's own observations regarding the pain. Her doctor stated that
she did not rely only upon the claimant's statements in deciding work
capacity, but based that assessment on her own observations from having
taken care of the claimant over an extended period. The doctor opined that
claimant's pain complaints were causally related to the work accident, and
that claimant had not yet reached maximum medical improvement. Claimant's
doctor also noted that in November 1998, the claimant attempted
unsuccessfully to return to work as a bus driver. Claimant's doctor
believed that the claimant was presently capable of light-duty work, and
opined that claimant is not a malingerer. In its role as fact finder, the
commission was entitled to weigh the medical evidence. The commission did
so and articulated legitimate reasons for accepting the opinions of the
claimant's treating neurologist, while rejecting the contrary opinions of
independent medical examiner. Washington
Metropolitan Area Transit v. Cooper, Record No. 2337-99-4
(February 8, 2000). WP
Version.
The
commission erroneously found that claimant established a change in
condition warranting TPD for the period claimed and erroneously found
a causal connection between her claimed disability and the compensable injury
she sustained to her lower back and left knee on May 16, 1996. In an
earlier proceeding claimant stipulated that that
the disability she experienced during the period from November 6, 1996
through February 3, 1997 was not causally connected to her accident of May
16, 1996. Claimant then filed a second claim in which she alleged a change
in condition, and requested ongoing TTD for a period beginning on March
27, 1997 and continuing indefinitely. King's Market v. Porter, 227
Va. 478, 483, 317 S.E.2d 146, 148 (1984), controls the determination of
whether claimant’s claim qualifies under Code Sec. 65.2-101(4) as a
"change in condition" sufficient to warrant a resumption of
disability benefits. See Hercules, Inc. v. Carter, 13 Va. App. 219,
223, 409 S.E.2d 637, 639-40 (1991). When an employee files an application
for reinstatement of disability benefits, two questions arise:
1) has there been a change in the employee's capacity to work; 2)
if so, is the change due to a condition causally connected with the injury
originally compensated. Claimant’s change in benefit status clearly
fails the first prong of the test. The
only change she has asserted is that she "went from a period of not
receiving workers' compensation to a change in that condition, as she
sought temporary total disability beginning March 27, 1997."
Such a change in benefit status has no bearing upon the claimant's
capacity to work. Furthermore, claimant's disability failed to satisfy the
second prong of the King's Market test.
Nothing in claimant’s medical records after the date of the
hearing on the first claim demonstrates a "change due to a condition
causally connected with the injury" for which she originally sought
compensation. King's Market, 227 Va. at 483, 317 S.E.2d at 148.
Indeed, Dr. Brickhouse outlined the history of claimant’s
treatment with him in a letter to the commission, dated May 8, 1997, and
confirmed that as of the date of the letter claimant continued to
experience back and knee pain which he attributed to 1) degenerative disc
and joint disease of the lumbar spine, and 2) mild degenerative changes in
her knees. Dr. Brickhouse
also stated in a note dated June 17, 1997, that claimant complained of
continued knee pain, and he reported that she had not returned to work
since November, 1996, because of her knee and back problems.
Claimant's statements, reported by Dr. Brickhouse, demonstrate that
her disability following March 27, 1997 was the same as that which she
experienced in the period from November, 1996 through February 2, 1997,
which, by stipulation, she conceded was not causally connected to her
industrial accident. Her
condition therefore remained unchanged from the first period to the
second. Finally, Terry's claim of disability in the second proceeding is barred
by the doctrine of res judicata.
See Rusty's
Welding Service, Inc. v. Gibson, 29 Va. App. 119, 128, 510
S.E.2d 255, 259 (1999) (en banc) (res judicata applies to decisions of the
commission); Allegheny
Airlines, Inc. v. Merillat, 14 Va. App. 341, 343-44, 416 S.E.2d 467,
469 (1992) (where claims relate to different periods of time and the claim
in the second proceeding is supported by different evidence than was
offered in the first proceeding, res judicata does not apply). Although
claimant’s second claim relates to a different period of time than that
claimed in the first proceeding, the medical evidence she offered in the
second proceeding was identical to that offered in the first proceeding,
viz. the May 8, 1997 letter from Dr. Brickhouse.
Her claim is thus barred by res judicata.
See Merillat, 14 Va. App. at 343-44, 416 S.E.2d at 469. Aramark
Corp. v. Virginia I. Terry, Record No. 0921-99-2 (March 14,
2000). WP
Version.
The commission did not err in finding that the Fund
failed to carry its burden of proof in its change in condition
application alleging that the claimant was no longer disabled from the
industrial accident and that his residual disability was unrelated to the
accident. Dr. Mitchener's evidence did not persuade the commission that
claimant’s residual incapacity, specifically the lack of grip strength
in the right hand, was unrelated to the industrial accident.
Dr. Mitchener opined that claimant’s lack of grip strength was
unrelated to the industrial accident and that it probably was caused by
"peripheral nerve irritation and/or compression, etiology
unknown." The
commission, however, was not required to accept Dr. Mitchener's conclusory
opinion as to causation, nor was the commission required to conclude from
Dr. Mitchener's opinion that because the etiology of the nerve irritation
or degeneration was unknown, that the Fund had met its burden of proving
that the disability was not caused by the industrial accident.
Because Dr. Mitchener recommended referral to a neurologist to
determine the cause of claimant’s peripheral neuropathy in his right
arm, the commission would not presume that the condition, which had not
existed prior to the burn injury, was not related to the burn injury.
Quite simply, the commission found that the Fund's evidence,
which consisted of little more than one doctor's opinion that the cause of
claimant’s nerve irritation or degeneration was unknown, was not
convincing, and therefore, not sufficient to persuade it that claimant’s
residual disability was unrelated to the burns and skin grafts that
this twenty-year-old laborer had suffered. Uninsured
Employer's Fund v. Tony Allen Nichols, Record No. 1338-99-3
(March 14, 2000). WP
Version.
The Workers' Compensation Commission did not err in
denying claimant's application alleging a change-in-condition in his June
5, 1994 injury by accident. Claimant's condition had deteriorated due to
psychological dysfunction, but the medical evidence included opinions that
claimant was able to return to his pre-injury employment without
restrictions with respect to claimant's physical condition, and that
claimant's behavior was consistent with malingering. John
Charles Harriger v. Pepsi-Cola General Bottler, Record No.
0290-00-3 (June 6, 2000). WP
Version.
Claimant worked as a rigger for the employer when he
suffered a compensable injury to his back on January 23, 1993. Claimant's
September 27, 1994 claim letter satisfied the two-year filing
requirement. It advised the commission that he suffered an injury to
his back while working for the employer on January 23, 1993 and stated a
claim "for all benefits to which he is or may be
entitled" under the Workers' Compensation Act. Claimant, however,
did not request a hearing date until June 3, 1997. It does not
matter that a hearing on the claim did not occur in the two-year period. So
long as the claimant's notice advises the commission of necessary elements
of his claim, "'it activates the right of the employee to
compensation and . . . invokes the jurisdiction of the Industrial
Commission.'" Trammel Crow Co. v. Redmond, 12 Va. App. 610,
614, 405 S.E.2d 632, 634 (1991) (attorney's letter to commission, which
contains required information, satisfied filing requirement) (quoting Shawley
v. Shea-Ball Constr. Co., 216 Va. 442, 446, 219 S.E.2d 849, 852
(1975)). The employee is also not required during the two-year period to
prove his disability . Cf. Southwest Virginia Tire, Inc. v.
Bryant, 31 Va. App. 655, 661, 525 S.E.2d 563, 566 (2000) (in change in
condition application, claimant not required to produce evidence prior
to expiration of two years). Instead, the employee's claim must
allege a present and existing disability within two years of the accident,
and he must prove that disability to receive benefits. Compare Johnson
v. Smith, 16 Va. App. 167, 170, 428 S.E.2d 508, 510 (1993)
(commission's denial of benefits reversed where claimant proved disability
existed during statute of limitations period), and WLR Foods, Inc. v.
Cardosa, 26 Va. App. 220, 229, 494 S.E.2d 147, 151 (1997) (benefits
denied because disability did not commence until two years after
accident). The fact that the employee did not seek a hearing within two
years of the accident does not bar his claim. Nor does the fact that
claimant received benefits under the Longshore Act trigger the time limits
for filing a change in condition application under Sec. 65.2-708. In
this case, claimant had not received benefits under the Virginia Workers'
Compensation Act. Sec. 65.2-708 requires a change in condition
request to be filed within two years of an award of benefits under the
Act. See Mayberry v. Alcoa Bldg. Prods., 18 Va. App. 18, 21, 441
S.E.2d 349, 350-51 (1994) (absent entry of formal award there is nothing
to review). An award under the LHWCA, however, is not an award under the
Workers' Compensation Act. See Virginia Int'l Terminals v. Moore,
22 Va. App. 396, 402, 470 S.E.2d 574, 577 (1996), aff'd, 254 Va. 46, 486
S.E.2d 528 (1997). Sec. 65.2-708 is inapplicable because there was no
prior award under the Act to review. Finally, claimant, still
disabled from pre-injury work, is also entitled to benefits although his
plant shut down when a contract was lost. "[T]he employer is
relieved of its duty to compensate the claimant only if it offers the
claimant employment in his or her 'pre-injury capacity' and the claimant
has been released to perform the work." Carr, 25 Va. App. at
312, 487 S.E.2d at 881 (disabled employee who accepted selective
employment but suffered wage loss because there was no opportunity for
overtime is still entitled to benefits). "The employer's financial
condition . . . do[es] not affect the claimant's right to compensation due
to an impaired capacity to perform his pre-injury duties." Consolidated
Stores Corp. v. Graham, 25 Va. App. 133, 137, 486 S.E.2d 576, 578
(1997). After an economic layoff from selective employment, an employee
remains entitled to benefits until he either fully recovers and is
released to pre-injury work, or until the employer offers him other
selective employment. See Washington Metropolitan Transit Authority
v. Harrison, 228 Va. 598, 600, 324 S.E.2d 654, 655 (1985) (benefits
denied because employee failed to prove he marketed his residual work
capacity). The employer's reasons for the layoff should not diminish
the employee's entitlement to benefits. The employee was injured on
the job and his capacity to work reduced. The Workers' Compensation Act
"is highly remedial and should be liberally construed to advance its
purpose . . . [of compensating employees] for accidental injuries
resulting from the hazards of the employment." See Henderson v.
Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987)
(citations omitted). Until the employee can perform at his pre-injury
capacity, he is protected from the economic vicissitudes of the market
place. The employee's layoff due to the employer's economic
downturn does not preclude his entitlement to disability benefits. Metro
Machine Corporation v. Isaac L. Lamb, Record No. 3044-99-2
(August 15, 2000). WP
Version.
The commission did not err by 1) finding that a de
facto award of benefits existed between March 20 and September 14,
1996; and 2) holding that claimant's January 13, 1998 supplemental change
in condition application related back to her May 14, 1997 application.
Pursuant to the decision in National Linen Service v. McGuinn, 5
Va. App. 265, 362 S.E.2d 187 (1987) (en banc), the commission had the
authority to determine that a de facto award of benefits existed.
Additionally, the County's procedural due process rights were not violated
when the commission ruled that claimant's January 13 filing related back
to her May 14 application.
Claimant sustained a compensable injury to her back and
leg on January 7, 1993. On July 21, 1995, the commission entered an award
approving the memorandum of agreement filed by the County providing for
payment of temporary total benefits to Taylor through May 14, 1995.
Taylor returned to work, but the County terminated her employment on March
19, 1996, after she was unable to perform her pre-injury duties. The County
then voluntarily paid Taylor the equivalent of her temporary total
disability award from March 20 through September 14, 1996. The
County unilaterally ceased making payments to Taylor effective September
15, 1996. On May 14, 1997, claimant notified the commission of
the County's voluntary payments to her. She also requested "ongoing
temporary partial compensation benefits." Two days prior to her
January 15, 1998 hearing before the deputy commissioner, Taylor notified
the commission that, while she was seeking temporary partial disability
benefits beginning September 26, 1996, she would be seeking temporary
total disability benefits effective on or about October 4, 1996 and
continuing to the present.
In McGuinn, the court addressed the consequences
of an employer's failure to submit a memorandum of agreement to the
commission where the employer voluntarily paid disability benefits to the
claimant. After the claimant injured his ankle at work, the employer
voluntarily paid him total disability benefits for a period of thirteen
months. The employer did not, however, submit a memorandum of agreement to
the commission. After the employer ceased paying benefits, the claimant
filed an application for hearing seeking continued benefits. The employer
defended on the ground that the claimant had failed to market his residual
capacity. See McGuinn, 5 Va. App. at 267-68, 362 S.E.2d at 188. In
allocating the burden of proof, the court noted that, had the employer
filed the memorandum of agreement with the commission, the employer would
have shouldered the burden of proving that the claimant was not entitled
benefits. The court concluded that Code Sections 65.1-45 and 65.1-93
required the employer to submit a memorandum of agreement to the
commission when it voluntarily decided to compensate the claimant for his
injuries. See McGuinn, 5 Va. App. at 270, 362 S.E.2d at 189-90. The
court further held that a de facto award of disability benefits arose when
the employer paid the claimant benefits for thirteen months without filing
the memorandum of agreement with the commission. See id. at 269-70,
362 S.E.2d at 189. The holding in McGuinn does not just relate
to initial claims for benefits. Whether an agreement between
the parties pertains to an initial award or a supplemental award following
a change of condition, the employer is still obligated to file a
memorandum of agreement with the commission. Code Sec. 65.2-701 refers
to agreements reached "after injury" and does not expressly
state or imply that the employer's obligation to file memoranda of
agreement is limited to the initial award. See Commission Rule 4
("All agreements as to payment of compensation shall be reduced to
writing by the employer and promptly filed with the Commission." Code
Sec. 65.2-708 does not require a claimant to file an application for
change of condition if she can reach a satisfactory agreement with her
employer regarding her entitlement to continuing disability benefits.
Claimant was not required to file a change of condition application in
March 1996 because the County voluntarily paid the equivalent of
temporary total disability benefits to her. Having evidently conceded that
claimant was entitled to these benefits, it was the County's
responsibility to file a supplemental memorandum of agreement with the
commission.
A finding of a de facto award does not depend upon a
showing of fraud or concealment. See McGuinn, 5 Va. App. at
269-70, 362 S.E.2d at 189. As the court explained in Ryan's Family
Steak Houses, Inc. v. Gowan, 32 Va. App. 459, 528 S.E.2d 720 (2000),
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. Id. at 463, 528 S.E.2d at 722
(quoting McGuinn, 5 Va. App. at 269-70, 362 S.E.2d at 189).
Therefore, that the presence of fraud or concealment by the employer is
not a requisite precondition for determining that a de facto award should
be recognized.
The commission did not err when it held the 1998
filing related back to 1997 for purposes of calculating the ninety-day
period of Rule 1:2(B). two days prior to the hearing before the deputy
commissioner, claimant formally declared she would be claiming entitlement
to temporary total disability benefits during much of the period of time
she had previously indicated she was entitled to partial disability
benefits. The correspondence authored by counsel for the County in July
and September 1997 reflects the County knew claimant would be attempting
to prove entitlement to total disability benefits. In its January 14, 1998
letter to the commission, the County neither objected to the deputy
considering the January 13 filing nor sought a continuance to review the
medical records. The County merely requested that the record be held open
for it to gather additional evidence pertaining to claimant's claimed
total disability. Finally, the amendment did not seek any benefits outside
of the time period identified in the 1997 application. Cf. WLR Foods,
Inc. v. Cardosa, 26 Va. App. 220, 227, 494 S.E.2d 147, 151 (1997).
"Consolidation of claims at the hearing is permissible and in
accordance with due process, provided the 'employer had notice of the
time, location and subject matter of the proceeding which was reasonably
calculated to afford the employer an opportunity to be heard.'" Crystal
Oil Co., Inc. v. Dotson, 12 Va. App. 1014, 1017, 408 S.E.2d 252, 253
(1991) (quoting Sergio's Pizza v. Soncini, 1 Va. App. 370, 373, 339
S.E.2d 204, 205 (1986). Where the commission permits the
consolidation of claims with little or no advance notice, the dispositive
issue is whether the employer suffered prejudice. Id. at 1018, 408
S.E.2d at 253-54. In Crystal Oil, the employer challenged the
commission's ruling that permitted an amendment to the claimant's change
of condition application and permitted the amendment to relate back to the
date of that application. On October 26, 1989, the claimant filed a change
in condition application seeking partial disability benefits effective
September 11, 1989. At the hearing before the deputy commissioner, the
claimant sought to amend his application by claiming total disability
benefits from July 25 through September 10, 1989. See id. at
1015-16, 408 S.E.2d at 252-53. the employer had defended the application
with significant success. See id. at 1018-19, 408 S.E.2d at 254.
The court also found that the employer had been given advance notice of
some of the claimant's contentions from prior proceedings. See id.
at 1019, 408 S.E.2d at 254. But see WLR Foods, 26 Va. App. at 227,
494 S.E.2d at 151 (holding that, where the change of condition application
sought benefits effective February 1, 1996, and where the commission, sua
sponte and without notice to the employer awarded benefits predating
February 1, the employer was prejudiced). County
of Henrico Public Utilities v. Susan Taylor, Record No.
1214-00-2 (January 23, 2001). WP
Version.
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
Version.
The Workers' Compensation
Commission did not err in awarding benefits to claimant for aggravation of
an earlier compensable knee injury. On August 14, 1998, while working at
the Central Virginia Training Center, claimant injured her left knee when
she caught a falling patient. See was diagnosed with a symptomatic plica,
chondromalacia of the patella, a lateral patellofemoral compression
syndrome and a medial meniscal tear. On September 28, 1998 she was
released to regular work. Claimant stated that her knee was much better at
that time and denied any giving way or buckling. Nevertheless, she
continued to experience some discomfort. Her last medical treatment for
that injury was in December, 1998 or January, 1999.
On October 21, 1999, claimant's knee popped and buckled
as she carried a mop and bucket up a stairway. She fell to the floor. She
went to the emergency room and returned to her initial physician's care.
She described the pain as different from the pain she had experienced in
August, 1998. Although it was in the same location, it was more severe,
and she was unable to walk. Her soctor diagnosed left knee patellofemoral
chondromalacia and bilateral patellofemoral compression syndrome. He
reported that "[the] event that she describes from October 21, 1999
did cause an aggravation of her previous left knee injury. It was not a
new diagnosis, but it was a new event." On December 21, 1999, he
returned claimant to medium work with restrictions.
On January 12, 2000, after the employer denied her
benefits, claimant stopped treating with her first doctori. She began
seeing a new doctor, whom she chose from a panel of physicians furnished
by the employer. Her new doctor agreed with her first doctor's diagnosis.
On April 6, 2000, he placed claimant on restricted duty.
An MRI revealed a torn medial meniscus and the absence
of an anterior cruciate ligament. Her new doctor concluded that
arthroscopic surgery would be appropriate, but actual reconstruction would
not be necessary. Claimant was removed from work from May 4, 2000 to May
25, 2000. A second opinion was requested by the employer, and claimant was
examined by Dr. John A. Cardea on June 16, 2000. Dr. Cardea agreed with
her new doctor's diagnosis. He reported that claimant's "medial
meniscus problem [relates] to the initial injury. . . . [T]his is an
exacerbation of a pre-existing condition or it may even be the first
symptoms of a pre-existing condition."
Following the October 21, 1999 injury, claimant filed
for temporary total disability benefits, claiming (1) that she had
suffered a compensable change in condition of the August 14, 1998 injury;
or, in the alternative (2) that she had suffered a new compensable injury
on October 21, 1999.
When an employee files a change of condition
application seeking reinstatement of disability benefits, two questions
arise: (1) has there been a change in the employee's capacity to
work; [and] (2) if so, is the change due to a condition causally connected
with the injury originally compensated. King's Market v. Porter,
227 Va. 478, 483, 317 S.E.2d 146, 148 (1984). Unquestionably, her capacity
to work changed as a result of the October, 1999 injury. On April 6, 2000,
she was placed on restricted work duty, and was removed from work duty for
the period of May 4 to May 25, 2000. The issue is whether this disability
was causally connected to her original compensable injury.
When a primary injury . . . is shown to have arisen
out of the course of employment, every natural consequence that flows from
the injury is compensable if it is a direct and natural result of a
primary injury. Leonard v.
Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99 (1977). Credible
evidence supports the commission's finding that claimant's disability
following the October, 1999 injury was a natural consequence flowing from
her compensable August, 1998 injury. Claimant had no knee problems prior
to the August, 1998 accident. Following the completion of treatment for
that injury, she continued to have pain in her knee when climbing stairs
or when standing for long periods. Her first doctor stated
unequivocally that the October, 1999 incident was an aggravation of her
original injury. An independent medical examiner selected by the
employer, wrote that her pain flared when she returned to full duty work
and that "this is an exacerbation of a pre-existing condition or
it may even be the first symptoms of a pre-existing condition."
These facts viewed as a whole support the determination that the
October, 1999 incident was an aggravation of her 1998 injury. CW/Central
VA Training Center v. Dorothy M. Cordle, Record No. 0458-01-2
(December 12, 2001) WP
Version.
The Workers' Compensation
Commission did not err in ruling that claimant's change-in-condition claim
for temporary total disability benefits beginning November 25, 1999 is not
barred by the doctrine of res judicata.
In 1997 claimant suffered a compensable injury by
accident to her ankle, leg, and back, a herniated disc, left L5-S1. On
July 30, 1999, clamant filed a change-in-condition claim, alleging
temporary total disability and alleging that her disability was caused by
a right L5-S1 disc herniation resulting from her compensable
accident. The Commission denied this claim.
On February 14, 2000, claimant filed another
change-in-condition claim, alleging temporary total disability from
November 24, 1999 resulting from severe degenerative changes at L5-S1 that
require surgery and that are related to her compensable injury by
accident.
In a proper case "principles of res judicata apply
to Commission decisions." K&L Trucking Co. v. Thurber, 1
Va. App. 213, 219, 337 S.E.2d 299, 302 (1985). Where applicable, the
principle "bars relitigation of the same cause of action, or any part
thereof which could have been litigated between the same parties and their
privies." Id. "One who asserts the defense of res
judicata has the burden of proving by a preponderance of the evidence that
an issue was previously raised and decided by [the commission] in a prior
cause of action." Fodi's v. Rutherford, 26 Va. App. 446, 449,
495 S.E.2d 503, 505 (1998). A cause of action is instituted by a
change-in-condition claim. Whitten v. Mead Paperboard, 4 Va. App.
182, 186, 355 S.E.2d 349, 350 (1987).
Where an application for a change in condition is filed
for the sole purpose of presenting additional evidence in support of a
claim that has previously been denied, res judicata will bar
reconsideration of the claim. However, res judicata does not bar a claim
for resumption of benefits when a "change in condition," as
contemplated by the Code, has occurred which has not been previously
considered by the commission. Fodi's, 26 Va. App. at 448-49, 495
S.E.2d at 504 (citations omitted).
The current change-in-condition claim was based on the
existence of a severe degenerative change at the L5-S1, which the
commission found to be the result of Clem's compensable injury by
accident. The commission's ruling that the evidence proved a causal
connection between the degenerative changes and the original injury by
accident is unchallenged. The only issue to be resolved under Lowes'
defense of res judicata is whether the current change-in-condition claim,
which relies upon a degenerative change at L5-S1 that is related to the
original compensable injury by accident, "has . . . been previously
considered by the commission." Id. at 449, 495 S.E.2d at 504.
The evidence concerning the first change-in-condition
claim established that the right-sided herniated disc was a
"new" injury, which was unrelated to the original compensable
injury by accident. The evidence concerning the second change-in-condition
claim established that the degenerative changes at L5-S1 resulted from the
injury by accident. No evidence from either proceeding established that
the two claims, i.e., the right-sided disc herniation and the degenerative
changes, were inextricably linked. "The barring of a cause of action
'which could have been litigated' is not directed to an unrelated claim
which might permissibly have been joined, but, to a claim which, if tried
separately, would constitute claim-splitting." Bates v. Devers,
214 Va. 667, 670-71 n.4, 202 S.E.2d 917, 920 n.4 (1974). Because the
commission's decision on the first change-in-condition claim was a final
determination only on the merits of the issue whether the right-sided disc
herniation resulted from the original injury by accident, the doctrine of
res judicata does not bar the current change-in-condition claim where the
cause of action is based upon whether degenerative changes in the L5-S1
were caused by the original injury by accident. In short, the current
claim was not raised by the first change-in-condition claim and was not
addressed by the medical evidence then before the commission. Lowes
of Christiansburg v. Jennifer D. Clem, Record No. 1188-01-3
(January 15, 2002). WP
Version.
Claimant did not establish a
causal connection between his 1995 accident and his later cervical
problems. To receive an award, a claimant must prove his change
of condition is causally related to the original occupational injury.
Commonwealth/Cent. Virginia Training Ctr. v. Cordle, 37 Va.
App. 232, 237, 556 S.E.2d 64, 67 (2001). Claimant argues the
accident exacerbated his pre-existing condition, not that the December
1995 accident directly caused the condition. Aggravation of a
pre-existing condition is compensable under the Workers' Compensation Act.
Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 231-32, 409
S.E.2d 824, 827 (1991). The treating physician, Dr. Geckle, provided
the only testimony in support of his position that the accident aggravated
his cervical condition. Dr. Geckle's only statement regarding
causation was an "X" beside "Yes," in response to the written question,
"In your opinion . . . did your patient's accident of December 13, 1995
and/or its sequellae aggravate, accelerate, and/or exacerbate your
patient's cervical problems . . . ." Nothing in his medical
reports provides any support for this conclusion. While a
treating physician's opinion normally is given great weight, see
Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986), such an opinion is not conclusive, especially
when the opinion is not accompanied by any reasoning or explanation.
Cf.
Lanning v. Virginia Dep't of Transp., 37 Va. App. 701, 708-09,
561 S.E.2d 33, 36-37 (2002) (explaining that a "bald assertion" is not
enough to prove causation nor are "talismanic words" necessary).
Here, while the doctor used the "talismanic words," he provided no
explanation for his conclusion. On the other hand, Dr. Bhuller, who
also treated claimant, Dr. Green, and Dr. Hagan, all agreed the cervical
condition was not related to the 1995 accident. While they did not
explicitly address the issue of aggravation, they completely rejected any
causal link between the injury and the accident. While the medical
opinions conflicted, the commission was free to decide which evidence was
more credible and should be weighed more heavily. See McPeek v.
P. W. & W. Coal Co., Inc., 210 Va. 185, 188, 169 S.E.2d 443, 445
(1969);
Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526
S.E.2d 267, 269 (2000). The commission did not abuse its
discretion when it declined to believe claimant's physician. The
commission did not err in finding his claim failed to establish a causal
connection between his original, compensated injury and his new injury.
Kenneth
P. Thompson v. Brenco, Inc., Record No. 0206-02-2 (August 13,
2002). WP
Version.
The commission did
not err in ruling that the aggravation of claimant's compensable injury
to his hand was compensable because employer gave claimant work that
required him to exceed his work restrictions, even though claimant
willfully violated his work restrictions by performing that work.
Claimant, who worked for employer as a painter,
suffered a compensable injury to his left thumb on June 9, 2000, while
lifting a piece of scaffolding. He went to Patient First on June 12,
2000, where he was examined by Dr. G. Clifford Walton. Dr. Walton
diagnosed a finger sprain. He limited claimant to light-duty work
with no lifting with the left hand. When claimant returned for a
follow-up examination on June 19, 2000, Dr. Walton took him out of work
and referred him to Dr. Keith A. Glowacki, a hand specialist.
Dr. Glowacki examined claimant on June 20, 2000.
He diagnosed a left thumb radial collateral ligament tear and placed
claimant's left hand in a cast. Dr. Glowacki noted in his report
that claimant would "have no use of that hand at work" for three to four
weeks. He further estimated in a patient work status report dated
June 20, 2000, that claimant would not have full use of his left hand for
six weeks and indicated in the "work limitations" portion of that report
that claimant was to have "no use of injured hand." Dr. Glowacki
emphasized in the "comments" section of that report that claimant was to
have "[a]bsolutely no use whatsoever of [left] hand!"
Employer, although notified of
claimant's restrictions, sent claimant to an airport work site, where
claimant was given the job of painting baseboards on the outside of a
building. The nature of the airport job required him to repeatedly
lift a gallon of paint with his left hand. Claimant's assignment at the
airport job lasted two days. then sent claimant to a work site at an
apartment complex. Terry testified he again told claimant's
supervisor to let claimant do only low work. Initially, claimant was
given the job of painting several seven-foot-tall windows. When the
windows were completed, claimant's supervisor had him paint a deck, which
required him to lift and climb a sixteen-foot ladder. Claimant testified
he was unable to lift and climb the ladder and paint the deck without
using his left hand. Claimant further stated that, when he climbed
the ladder, he had to temporarily remove a brace that had been prescribed
by Dr. Glowacki for his left hand, because he was afraid he would fall off
the ladder if he did not. Claimant also testified his supervisor saw
him lift and climb the ladder using his left hand and remove his brace,
but the supervisor did not tell claimant not to use his left hand.
According to claimant, his supervisor told him he had to lift the ladder.
Claimant did not ask anyone to help him. He complained to a
co-worker that the work he was being given violated the work
restrictions imposed by his doctor.
When claimant returned for a follow-up visit on August 18,
2000, Dr. Glowacki reported as follows: Despite conservative treatment,
[claimant] is failing with continued use of his hand at work given the
option of only two-handed type of work. It is impossible without use
of your thumb to do heavy lifting of a ladder. . . . Presently he is
a danger to himself and his coworkers if he continues to lift ladders,
climb ladders and do heavier type activity. Unfortunately I believe all
this is moot as he is failing conservative treatment and likely is made
worse by using his hand. I told him that we'll have to get an MRI to
evaluate this area and probably have to perform surgery at this point. . .
. We will see him back after the MRI regarding the surgical
treatment.
Dr. Glowacki further noted in a patient work status report
dated August 18, 2000, that claimant's injury was work related and that he
did not know when claimant might return to work with full use of both
hands. Dr. Glowacki also indicated in the "work limitations" portion
of that report that claimant was to have "no use of injured hand" and
added in the "comments" section that surgery would probably be necessary
"due to [claimant's] constant using of hand."
Claimant continued working for employer through September 21,
2000, doing such work as painting offices with eight-foot-high ceilings,
the outside of condominiums, the outside of a shed, the outside of houses,
and the outside of a church. According to claimant, his work
included carrying forty-foot ladders and climbing ladders to the second
floor of houses. Claimant left employer in September to work for
another painting company because he "did not feel good" and employer did
not give him his normal hours due to his hurt hand. In his new job,
as a supervisor, he did not lift or climb ladders or otherwise use his
left hand when painting. He left that job three months later because
his thumb and the cold weather were "bothering [him] too much."
To prevail on his claim, claimant had to prove by a
preponderance of the evidence that the disability for which he sought
compensation was causally related to his June 9, 2000 compensable injury.
See King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148
(1984); Rosello v. K-Mart Corp., 15 Va. App. 333, 335, 423 S.E.2d
214, 216 (1992). The commission's determination of causation is a
finding of fact. American Filtrona Co. v. Hanford, 16 Va.
App. 159, 165, 428 S.E.2d 511, 515 (1993). "If there is evidence, or
reasonable inferences can be drawn from the evidence, to support the
commission's findings, they will not be disturbed on review, even though
there is evidence in the record to support a contrary finding."
Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986).
It is well settled in Virginia that an employee is
entitled to receive compensation for the subsequent aggravation of a
compensable injury if that aggravation is directly connected to the
employee's original compensable injury by a chain of causation
uninterrupted by "'an independent intervening cause attributable to [the
employee's] own intentional conduct.'" Leadbetter, Inc. v.
Penkalski, 21 Va. App. 427, 432, 464 S.E.2d 554, 556 (1995) (quoting 1
Arthur Larson, The Law of Workmen's Compensation Sec. 13.00 (1994)).
On the record of this case, claimant's performance of work that
required him to exceed his work restrictions did not constitute an
"independent" intervening cause. Employer knew the work it
was giving claimant required him to exceed his work restrictions, and
employer should have reasonably known that such work would predictably
result in the aggravation of claimant's original compensable injury.
Accordingly, claimant's conduct did not break the chain of causation
directly connecting his compensable injury and the continuing aggravation
of that injury.
The continuing aggravation of claimant's original compensable
injury was a result employer "should have reasonably expected." It
was the predictable consequence of employer's giving claimant work beyond
his work restrictions. Thus, having knowingly given claimant work
that required him to exceed his work restrictions and that could
reasonably be anticipated to result in the aggravation of claimant's
compensable injury, employer may not escape having to pay for claimant's
compensation benefits for an aggravation caused by such work simply by
blaming claimant for engaging in work beyond his restrictions.
Employer must bear the responsibility of having knowingly given claimant
work that required him to exceed his doctor's work restrictions.
S. P. Terry
Company, Inc. v. Jorge Rubinos, Record No. 2470-01-2 (August
13, 2002).
WP Version.