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MEDICAL OPINIONS
For the mechanism or cause of an injury and resulting disability, the commission and courts must consider the medical evidence. Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968). Nevertheless, medical evidence is neither dispositive nor required in some cases to establish causation. The testimony of a claimant may also be considered in determining causation, especially where the medical testimony is inconclusive. See Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 281, 348 S.E.2d 876, 878 (1986); Dollar General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996). "As noted in 2B Arthur Larson, The Law of Workmen's Compensation § 79.51(a) (1995): 'To appraise the true degree of indispensability which should be accorded medical testimony, it is first necessary to dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis. True, in many instances it may be impossible to form a judgment on the relation of the employment to the injury, or relation of the injury to the disability, without analyzing in medical terms what the injury or disease is. But this is not invariably so. In appropriate circumstances, awards may be made when medical evidence on these matters is inconclusive, indecisive, fragmentary, inconsistent, or even nonexistent. Id. (citations omitted).'" Dollar General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996). "'Medical evidence is not necessarily conclusive, but is subject to the commission's consideration and weighing.' The testimony of a claimant may also be considered in determining causation, especially where the medical testimony is inconclusive." Id. at 176-77, 468 S.E.2d at 154 (quoting Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991), and citing Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 281, 348 S.E.2d 876, 878 (1986)); Robert L. Jackson Assoc., Inc. v. Michael Ray Perry, No 2064-91-4 (Ct. of Appeals June 9, 1992) (claimant's testimony is relevant on issue of disability).
A medical opinion concerning the cause of a condition not based upon reliable or complete information, misinformation provided by a claimant or a faulty premise, is entitled to little or no weight and should be rejected. Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d 15, 16 (1985); Sneed v. Moengo, 19 Va. App. 199, 205, 450 S.E.2d. 167, 171 (1994).
"[T]he general rule is that when an attending physician is positive in his diagnosis . . . , great weight will be given by the courts to his opinion." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). See Fingles Co. v. Tatterson, 22 Va. App. 638, 641, 472 S.E.2d 646, 647 (1996) (citing 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). This is especially true of a treating specialist in the same field as that of a specialist of equal qualifications who has only made one examination. Alston v. U.S. Air, Inc., 61 O.I.C 19, 20 (1982). The opinions of treating physicians are not, however, binding and must be assessed consistently with reason and justice, taking into consideration all the evidence in the record. Williams v. Fuqua, 199 Va. 709, 101 S.E.2d 562 (1958).
"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). A greater number of medical opinions does not necessarily constitute a preponderance of the evidence. Island Creek Coal Co. v. Honaker, 9 Va. App. 336, 339, 388 S.E.2d 271, 273 (1990).
The commission was entitled to reject the opinion of a doctor who did not begin treating claimant until approximately two years after his industrial accident contrary to the opinion of a treating physician. See Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).As fact finder, the commission is entitled to weigh the medical evidence and to reject a physician's opinion, because the record established that his opinion was based upon an inaccurate and incomplete medical history. See Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d15, 16 (1985).
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.
In a case where there is a wide and irreconcilable difference of opinion between the doctors involved in assessing the claimant, the Commission was entitled to accord no greater weight to the opinion of the treating physician than the opinions of three other doctors. The commission's findings are supported by the record. In light of the irreconcilable conflicts in the medical evidence, the commission, as fact finder, was entitled to conclude that "[u]pon review of the record of [sic] a whole, we find that the claimant has not proven by a preponderance of the evidence that he has a partial loss of vision or that he has reached maximum medical improvement." Gary L. Frye v. Valley Hauling, Inc., Record No. 2758-98-3 (May 4, 1999). WP Version.
In Board of Supervisors of Henrico County v. Martin, 3 Va. App. 139, 348 S.E.2d 540 (1986), the claimant's hearing testimony proved that his accident was not compensable. The commission nonetheless decided otherwise and relied on the claimant's medical histories given to his physician as proof of how the accident occurred. We held that the commission's findings violated Massie v. Firmstone, 134 Va. 450, 462, 114 S.E.652, 656 (1922), which stated that a party is bound by his or her unequivocal testimony at trial. Any other language in Martin regarding the common law rules of evidence was dicta. In Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 371 S.E.2d 828 (1988), we held that the commission's statement that it would not rely on claimant's medical histories to determine how an accident occurred did not imply that the commission failed to consider the histories for other purposes, such as impeaching claimant or explaining the basis of the doctor's opinion. In his concurring opinion in Small, Judge Moon elucidated the common law differences between a prior inconsistent statement and a party admission. See id. at 139, 371 S.E.2d at 833. In McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), in response to the commission's use of the dicta in Martin, the Court of Appeals wrote that under common law rules of evidence, medical histories are admissible substantively as party admissions. Id.
A physician's diagnosis of an employee's condition is not dispositive on the issue of compensability and physicians often reach different conclusions about a condition's origin. [O]nce an employee receives a communication of an occupational disease, it is incumbent upon that employee to file a claim. Once a claim is filed, it is the duty of the Commission to determine: (1) whether the disease is in fact an "occupational disease" as defined in Code Sec. 65.1-46, and if so, (2) whether that occupational disease is compensable. Parris v. Appalachian Power Co., 2 Va. App. 219, 225-26, 343 S.E.2d 455, 458-59 (1986).
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); Wellmore Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16, 1999). WP Version.
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 Version.
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 Version.
The commission erred in finding claimant failed to meet her burden to prove that her carpal tunnel syndrome was caused by her work. Claimant alleges both an injury by accident on February 25, 2000, and the occupational disease of carpal tunnel syndrome. Claimant began working for employer in 1982 as a toll collector. In 1994, she was transferred to a clerical position, which involved data entry, purchase orders, inventory, and requisitions. She testified that on February 25, 2000, she was using her right hand to make her daily time entries when her hand "wouldn't work." She could not move her fingers. Dr. Burns first saw claimant in 1993, after she sustained a severe injury to her left arm and hand while working at the toll booth. Dr. Burns performed surgery on her left shoulder. However, for a while after the surgery, claimant was unable to use her left arm at all, and she began having symptoms of right hand carpal tunnel syndrome. She had several "flare-ups" during subsequent years. In 1999 and 2000, her right hand symptoms became much more severe. In his letter dated January 18, 2001, Dr. Burns indicated claimant's "pain is related to her on the job injury and the recurrences that she has had is related [sic] back to her original injuries and having to use the right arm more." Other than this letter, no evidence directly addressed causation.
Code Sec. 65.2-400(C) provides "the condition[s] of carpal tunnel syndrome are not occupational diseases but are ordinary diseases of life as defined in [Code] Sec. 65.2-401." Code Sec. 65.2-401 provides that the elements required to prove a compensable ordinary disease of life must be "established by clear and convincing evidence, (not a mere probability)." The narrow issue before this Court, therefore, is whether claimant
proved by "clear and convincing evidence" that her carpal tunnel syndrome was caused by her employment. For an ordinary disease of life to be compensable, a claimant must prove by "clear and convincing evidence, (not mere probability)" that the disease (1) arose out of and in the course of his employment, (2) did not result from causes outside of the
employment, and (3) follows as an incident of an occupational disease, is an infectious
or contagious disease contracted in the course of the employment listed in Code Sec. 65.2-401(2)(b), or is characteristic of the employment and was caused by conditions peculiar to the employment. Code Sec. 65.2-401; see also Lindenfeld v. City of Richmond Sheriff's Office, 25 Va. App. 775, 784, 492 S.E.2d 506, 510 (1997). Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 612, 525 S.E.2d 55, 57 (2000).
"Clear and convincing evidence" is defined as: "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." National Fruit Prod. Co. v. Staton, 28 Va. App. 650, 654, 507 S.E.2d 667, 669 (1998) (quoting Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975)) (emphasis in original), aff'd, 259 Va. 271, 526 S.E.2d 266 (2000) (per curiam).
The commission was correct in stating that a bare assertion that a condition is "work-related" does not meet the "clear and convincing" standard. The fact that a condition is "related to" the workplace is not proof by itself of causation. However, the evidence here includes more than a bald assertion of a relationship between claimant's work and carpal tunnel syndrome. While he employed the words, "related" and "related back," Dr. Burns explained he believed claimant's present problem with carpal tunnel syndrome was caused by her original injury at the toll booth. The "injury" became worse due to her constant use of the computer in her new position. He did not merely assert that the injury was related to her job; he explained how her prior and present work conditions resulted in the injury. Additionally, no evidence proved claimant had carpal tunnel syndrome or experienced symptoms related to that condition prior to her work for employer, and the evidence proved no causes outside her employment contributed to that condition. In this context, Dr. Burns' opinion could be considered clear and convincing evidence that claimant's condition was caused by her
work. "We will not substitute form over substance by requiring a physician to use magic words . . . when the record is void of any evidence of non-employment factors responsible for [the condition]." Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988). As Commissioner Diamond said in the dissent, "[t]he Commission should not require the use of talismanic words to find causation." Rather than viewing Dr. Burns' medical opinion in its entirety, the commission addressed only his use of the word, "related," in its decision. A decision cannot be affirmed that emphasizes the use of one word to the exclusion of considerations of the context within which the word is used and other evidence in the record. Agnes V. Lanning v VA Department of Transportation, Record No. 2264-01-1 (March 26, 2002). 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." The commission was entitled to give more weight to the medical opinions in the office notes. Wellmore Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16, 1999). WP Version.
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.
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 abcess, 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 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.
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 Version.
The commission did not err in awarding permanent partial disability benefits to claimant for a nineteen percent disability rating to his right leg. Claimant’s doctor’s opinion letter persuasively establishes a 19% permanent partial functional loss of the claimant's right leg. The commission recognized that the doctor used the plural "extremities" more than once in his letter. However, the commission inferred that the doctor had some difficulty with the use of the English language but that "[h]is testimony and reports clearly demonstrate, however, that his permanent partial disability rating is related solely to the claimant's compensable right knee injury." The commission, as fact finder, was entitled to make such reasonable inferences. Heart Corporation v. Thomas Myerchin, Record No. 0928-99-2 (November 23, 1999). WP Version.
The Workers' Compensation Commission (commission) did not err in finding that claimant proved he was totally disabled beginning August 13, 1998. Claimant's doctor stated in a letter to claimant's attorney his opinion that the claimant was totally disabled from the time of his accident. This opinion is substantiated by his note dated August 13, 1998, stating that the claimant was to be out of work for the "indefinite future." The commission was entitled to weigh any inconsistencies between that evidence and the doctor's deposition testimony. The commission did so and articulated legitimate reasons for concluding that the doctor's deposition statements assumed that the claimant would undergo the surgery that was being considered and that these statements did not sufficiently outweigh the other evidence to require a finding that the claimant failed to carry his burden. Faraway Farms, Inc. v. Dinges, Record No. 2163-99-3 (February 8, 2000). WP Version.
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 the neurosurgeon's 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 Version.
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 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 commission did not err in finding that claimant had heart disease and did not err in holding that employer failed to rebut the statutory presumption of Code Sec. 65.2-402(B) that claimant's heart condition was an occupational disease covered by the Workers' Compensation Act.
Claimant was a fifty-three-year-old police officer who had been on the force for approximately twenty six years. Thirty minutes after carrying a television into his home, he died. Without examining the body, claimant's
family physician for thirty years, Dr. Forbes, executed the death certificate, indicating that Coffey died as a result of acute myocardial infarction. No autopsy was performed or requested. Claimant had not been diagnosed with heart disease prior to his death.
The first issue is whether the evidence is sufficient to prove that claimant died as a result of a heart attack or heart disease. See Code Sec. 65.2-402(B); Page v. City of Richmond, 218 Va. 844, 847, 241 S.E.2d 775, 777 (1978). Six physicians rendered opinions as to the cause of claimant's death. See Code Sec. 8.01-401.1 ("[A]ny expert witness may give testimony and render an opinion or draw inferences from facts, circumstances, or data made known to . . . such witness . . . . The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data . . . ."); Cox v. Oakwood Mining, Inc., 16 Va. App. 965, 434 S.E.2d 904 (1993) (applying Code Sec. 8.01-401.1). "An expert's opinion which is neither based upon facts within his own knowledge nor established by other evidence is speculative and possesses no evidential value." Gilbert v. Summers, 240 Va. 155, 160, 393 S.E.2d 213, 215 (1990). However, a doctor's expert medical opinion is not speculative if based on an accurate understanding of the relevant facts. See id.; cf. Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329 S.E.2d 15, 16 (1985) (per curiam) (holding that a doctor's medical opinion was not credible when based upon a faulty premise); Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980) (stating that a medical opinion is speculative if based on a "possibility" but admissible and sufficient if based on a "reasonable probability"); Circuit City Stores, Inc. v. Scotece, 28 Va. App. 383, 387-88, 504 S.E.2d 881, 883-84 (1998) (adopting standard for admissibility of medical evidence articulated in Spruill). In rendering their opinions, the physicians had access to claimant's medical records, the records of the emergency personnel who attempted to resuscitate claimant, and claimant's wife's deposition detailing the facts and circumstances immediately
preceding claimant's death. Several doctors attributed claimant's death to heart disease or conditions associated with it. Although employer's experts advanced alternative causes for claimant's death, the physicians stated that such causes other than heart disease were unusual. Therefore, credible evidence supports the commission's finding that claimant died of heart disease.
The second issue is whether the employer rebutted the presumption of Code Sec. 65.2-402(B) that once the claimant had shown that the law enforcement official died as a result of heart disease, the heart disease shall be presumed to be an occupational disease unless this presumption is sufficiently rebutted by employer. The Supreme Court recently held that [t]o overcome the presumption [contained in Code Sec. 65.2-402(B)], the employer must show, by a preponderance of the evidence, both that 1) the [employee's] disease was not caused by his employment, and 2) there was a non-work-related cause of the disease. Thus, if the employer does not prove by a preponderance of the evidence both parts of this two-part test, the employer has failed to overcome the statutory presumption. Bass v. City of Richmond Police Department, 258 Va. 103, 114, 515 S.E.2d 557, 562-63 (1999) (citations omitted). Although employer's experts presented evidence of non work-related causes of claimant's heart disease, the medical evidence was in substantial conflict. Two of employer's experts impermissibly attempted to rebut the legislative presumption by negating any causal link between occupational stress and heart disease, and, thus, is not probative rebuttal evidence. Medlin v. County of Henrico Police, 34 Va. App. 396, 40, 542 S.E.2d 33, 38-39 (2001). Although another employer expert conceded that stress was a "minor factor" in this case, he failed to exclude it as a significant factor causing his heart disease. Accordingly, the commission did not err in finding that employer's rebuttal evidence failed to exclude claimant's occupational stress as a cause of his heart disease. City of Waynesboro Police v. Sharon Coffey, etc., Record No. 1456-00-2 (April 17, 2001). WP Version.The commission erred in finding that claimant refused light-duty employment when she retired from her position and failed to cure her unjustified refusal of selective employment within the statutory period under Code Sec. 65.2-510(C). Claimant was injured in a work-related accident on February 28, 1996. The claim was as compensable, and the commission entered an award for benefits for temporary total disability from March 7, 1996 through March 12, 1996. On March 13, 1996, claimant returned to her pre-injury position at full wages. Although no physician had restricted claimant's duties, the employer voluntarily made some accommodations. Claimant was no longer required to, nor did she in fact, perform certain aspects of the job including carrying bags of coins from a storage area to her workplace or carrying receipts and other documents. Claimant began using crutches and in a doctor's visit on April 9, 1996 her physician recommended that she remain on crutches. Claimant worked full time from March 15 until she retired on May 1, 1996.
On September 21, 1999, claimant filed a claim for benefits based on a change in condition, seeking temporary total disability benefits for the period beginning September 16, 1999, and continuing. The full commission issued an opinion dated November 30, 2000, granting temporary total disability benefits from September 16 through November 1, 1999, because claimant was totally incapacitated during that period, but denying temporary total disability benefits after November 1, 1999, because it found that claimant unjustifiably refused light-duty employment by retiring in 1996.
An employer seeking to terminate compensation benefits based on refusal of selective employment must establish "(1) a bona fide job offer suitable to the employee's capacity; (2) procured for the employee by the employer; and (3) an unjustified refusal by the employee to accept the job." Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37, 542 S.E.2d 785, 788 (2001) (quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380 (1985)). An employer may meet its burden "by producing evidence that it offered [the employee] selective employment approved by [the employee's doctor.]" American Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985). The commission erred in finding that the employer satisfied the first element of Code Sec. 65.2-510(A) because no credible evidence links the employer's accommodations to medical advice, directive or opinion.
To carry its burden of proving an offer of suitable employment, an employer must demonstrate to the commission that the position offered is approved by, or complies with the advice, directive or opinion of, the claimant's medical provider. Talley v. Goodwin Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982) ("[T]he tender of limited employment must necessarily be based upon informed medical opinion."). Any accommodations offered by the employer were voluntary and therefore do not meet the requirements for proving selective employment. Talley, 224 Va. at 52, 294 S.E.2d at 820 (holding that selective employment must be based upon informed medical opinion). Alice J. Gallahan v. Free Lance Star Publishing, Record No. 3072-00-3 (November 13, 2001). 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.
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