CAUSATION
See Accident, Occupational Disease
If the evidence shows that it is just as probable that the
disability resulted from a cause which is not compensable, as it is that it resulted from
one which is compensable, the claimant has not sustained his burden of proof. Bergmann
v. L&W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981). But where a
disability has two causes: one related to the employment and one unrelated
to the employment, full benefits will be allowed. Bergmann v. L&W Drywall,
222 Va. 30, 32, 278 S.E.2d 801, 803 (1981). The "two causes rule"
addresses those cases "where a disability has two causes: one related to the
employment and one unrelated." Smith v. Fieldcrest Mills, Inc., 224 Va. 24,
28, 294 S.E.2d 805, 808 (1982) (quoting Bergmann v. L & W Drywall, 222 Va. 30,
32, 278 S.E.2d 801, 803 (1981)); see also Shelton v. Ennis Business Forms, 1 Va.
App. 53, 55, 334 S.E.2d 297, 299 (1985). Under the two causes rule, "full
benefits [are] allowed when it is shown that `the employment is a contributing factor."
Smith, 224 Va. at 28-29, 294 S.E.2d at 808 (quoting Bergmann, 222 Va. at 32,
278 S.E.2d at 803); see also Shelton, 1 Va. App. at 55, 334 S.E.2d at 299. The
"more probable than not rule," addresses those cases where only one of
a number of possible factors caused the disability. See id. Under the more
probable than not rule, for the disability to be compensable, it must be more probable
than not that it was caused by the work-related factor. Id. That is, a
preponderance of evidence must show that work-related factor was the cause of the
disability. Id.
A claimant's proof of the required causal connection must
go beyond mere conjecture. Southall v. Eldridge Reams, Inc., 198 Va. 545,
548, 95 S.E.2d 145, 147 (1956)."Possibility is not enough,"
when proving causation. Eccon Company v. Lucas, 221 Va. 786, 791, 273 S.E.2d 797,
799 (1981); Rust Engineering Co. v.
Ramsey, 194
Va. 975, 76 S.E.2d 195 (1953) ; Wellmore
Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16,
1999). WP
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A Possible Causal Connection is Not Enough. The
Workers' Compensation Commission did not err in finding that claimant
failed to prove that certain medical expenses incurred by her since 1996
were causally related to either her August 3, 1979 or August 13, 1981
compensable injuries by accident. Claimant relies solely upon a letter
from an orthopedic surgeon stating, “It is possible that the
cervical spine problem did contribute to the patients [sic] shoulder and
scapula problems as the two are often related.” This doctor did not
express his opinion regarding causation with any degree of reasonable
probability or medical certainty. Rather,
he merely raised the "possibility" of a causal relationship.
It is well established that "[a] medical opinion based on a
'possibility' is irrelevant [and] purely speculative."
Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419,
421 (1980). the commission was entitled to conclude that the evidence
failed to prove that the medical treatment at issue was causally related
to either of claimant's compensable work-related accidents. Joyce
Ann Myers v. Anheuser Busch, Inc., Record No. 1428-99-1
(November 23, 1999). WP
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Evidence in the record was sufficient to prove
that claimant's 1993 compensable back injury caused the current condition
suffered by the claimant. The claimant's symptoms were in the same locations as the
symptoms from the original injury, his symptoms persisted to the present, and he remained
under the same doctor's treatment since 1993. The commission had awarded the claimant
temporary total disability awards through June 16, 1996, thereby establishing the causal
relationship at least through that date. There was no evidence of any new specific
intervening injury. Although claimant's doctor gave an affirmative response to a question
asking whether he agreed that it was just as probable the L5 disc rupture
was caused by cumulative or specific events at his new employment as attributable to the
1993 work accident, the doctor also stated, "Patient current complaints are related
to 3-29-93 injury." Other notes refer to the new herniation as a "recurrent
L5 disc herniation." Wellmore
Coal Corporation v. Dallas E. McClanahan, Record No. 1922-98-3 (March 16,
1999). WP
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The commission did not err in finding that
claimant proved that his herniated lumbar disc was causally related to his
September 2, 1997 injury by accident. The medical record repeatedly refers
to the onset of symptoms following a work-related lifting incident on
September 2, 1997. The claimant informed the physicians that he performed
heavy labor and injured his back and he reported chronic symptoms for
three months. The claimant told his supervisor about the injury and told a
doctor about a previous injury in August 1996 but that the injury
resolved. Claimant did not have any problem after that until September
1997. A doctor informed another doctor "of back pain which seems to
date to September of 1997. . . ." This doctor detailed a history of
lifting a 12-inch block on September 2, 1997, and then an onset of acute
low back pain. He noted that the claimant continued to work and that the
symptoms varied with his work activities. Other health care providers have
also reported the September 1997 work injury as the source of the current
symptoms. He has had progressive pain since that time.
Claimant's testimony, coupled with the medical records and histories the
doctors, constitutes credible evidence from which the commission could
reasonably infer that claimant's herniated disc was causally related to
the September 2, 1997 injury by accident. Berry
Enterprises, Inc. v. Rodney A. Johnson, Record No. 1213-99-3
(October 5, 1999). WP
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The commission did not err in
finding that claimant proved that her cervical disc condition and March
2, 1998 surgery were causally related to her compensable July 17,
1996 injury by accident. The accident resulted in a cervical and
thoracic strain. She testified that a 264 pound patient rolled onto her
arm. At that time, she initially felt pain in her arm and neck, and later
felt numbness. during the fifteen-month period after the July 1996
accident, claimant was in a great deal of pain and required the assistance
of other employees to help her with her duties. Claimant also limited her
activities outside of work due to episodes of pain. Claimant admitted that
she did not seek further medical attention between July 1996 and October
1997 for her neck or shoulder problem. A finding of causation is supported
by the medical record. Dr. Bradner . . . confirmed that the treatment
beginning October 27, 1997, was related to the July 1996 work accident.
Dr. Ayres . . . recorded an accurate history of the . . . accident and
[claimant's] ensuing symptoms. . . . Although he made no specific
statement regarding causation, his diagnosis of the chronic strains
juxtaposed to the accurate history certainly implies a causal
relationship. Dr. Kiluk . . . provided an Attending Physician's Report
which specifically supported the causal relationship. The commission did
so and accepted the opinions of Drs. Bradner, Ayres, and Kiluk, while
rejecting the contrary opinion of Dr. Thompson, who never examined or
treated claimant. The medical records and opinions of Drs. Bradner,
Ayres, and Kiluk, along with the testimony of claimant and her co-worker,
constitute credible evidence supporting the commission's decision.
"[T]he commission was free to credit claimant's testimony at the
hearing as a basis for its finding of causation. The fact that contrary
evidence may appear in the record 'is of no consequence if there is
credible evidence to support the commission's finding.'" Dollar
General Store v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155
(1996) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991)). Heritage
Hall Blackstone v. Henley, Record No. 0036-99-2 (October 19,
1999). WP
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Claimant’s condition,
though in part due to congenital abnormality of the craniocervical
junction, was the direct result of a fall at work. The claimant’s doctor stated that the surgery
performed to correct the abnormality was the direct result of this fall. The surgery would not have been performed had she
not fallen. As the treating neurosurgeon, the doctor’s opinions were entitled to be
given great weight by the commission. See Pilot
Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986).
The commission is also free to consider the testimony of a claimant
in determining causation, especially where the medical testimony is
inconclusive." Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,154
(1996).
Claimant's doctor recorded a history that claimant's
pain after the accident was of abrupt onset, that it affected claimant's
lumbar spine, and that it had a radicular quality. Claimant testified that
although he had suffered from previous back pain, the pain
he felt after the accident was much more intense than anything he
had ever experienced before. A neurosurgeon, diagnosed a disc
herniation at the L3-4 level. Claimant testified that although some of his
pain abated after the surgery, he still suffers from back symptoms and has
not fully recovered. Claimant's testimony and the medical records provide
credible evidence to support the commission's finding that the medical
treatment received by claimant after the accident was causally related to
that accident. Harman
Ceiling and Partitioning Co. v. Lusk, Record No. 0612-99-3 (July
20,1999). WP
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No doctor
stated that the claimant's non-ischemic central retinal vein occlusion in his left eye was
caused by exposure to welding flashes, or was the result of corneal abrasions sustained at
the time of the flashes. The closest any doctor comes on this record to such a statement
is the statement of a doctor that claimant's retinal condition "appeared to develop
in association with [claimant’s] ocular injury." In the immediately preceding
sentence, the doctor’s report stated that central retinal vein occlusion is often of
unknown cause. At most, the doctor was
stating no more than a temporal association between the claimant's corneal abrasions
and the development of the central retinal vein occlusion. At most, there is an
undefined temporal association between the two conditions.
Such a conclusion is not sufficient to find the necessary causal relationship
between the claimant's corneal abrasions and his retinal condition. Lynn J. Dempsey v. Enerfab
Corporation, Record No. 1894-98-2 (February 2, 1999).
The illegality defense is based on the principle that a
party who consents to and participates in an illegal act may not recover from other
participants for the consequences of that act. Miller v. Bennett, 190 Va.
162, 164-65, 56 S.E.2d 217, 218 (1949). In Miller v. Bennett, 190 Va. 162, 56
S.E.2d 217(1949), the court held that the estate of a woman, who died after participating
in an illegal abortion, could not recover damages for wrongful death from the person who
performed the abortion procedure. This holding was based on the fact that the
direct cause of the decedent's death was the illegal conduct in
which she consensually participated. The illegality defense will be applied to bar
recovery if the evidence shows that the plaintiff freely and voluntarily consented to
participation in the illegal act, without duress or coercion. Trotter v. Okawa, 248
Va. 212, 216, 445 S.E.2d 121, 123-24 (1994). As with other defenses, the party
raising the illegality defense has the burden to establish it. A determination of
whether a person has engaged in an illegal act, for purposes of the illegality defense, is
an objective inquiry. See Zysk v. Zysk, 239 Va. 32, 35, 404 S.E.2d 721, 722 (1990).
In Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990), the court held that a woman who
had contracted a sexually transmitted disease during premarital sex could not recover
damages from her partner. The act of sexual intercourse was both consensual and illegal.
The court explained that "courts will not assist the participant in an
illegal act who seeks to profit from the act's commission." Id. at
34, 404 S.E.2d at 722. See also, Eagle, Star and British Dominions Ins. Co. v. Heller,
149 Va. 82, 140 S.E. 314 (1927), in which the court held that a convicted arsonist could
not recover under an insurance policy for damages to a building that he had burned. Id.
at 105-06, 140 S.E. at 321. See Benjie Godbolt v. Robert W.
Brawley, Et al., Record No. 950105 (November 3, 1995).
Concurrent disability.
During the period in dispute, claimant had not been released to return to her pre-injury
employment. Although claimant's surgery produced a concurrent disability, the
evidence established that she had not fully recovered from her compensable injury.
The dates of claimant's recovery period for the intervening injury were June 8, 1994 to
July 15, 1994, a period prior to Dr. Dunstan's release of claimant to her pre-injury
employment on August 4, 1994. Thus, the commission did not err in holding employer
responsible for compensation during the disputed period. Lynchburg General
Hospital v. Antonia Spinazzolo, Record No. 0343-95-3 (March 26,
1996).
Employer bore the burden of proving, on its change-in-condition
application, that claimant's ongoing pain and related disability are not causally related
to her compensable injury. Employer failed to meet its burden. Claimant
had a diagnosis of fibromyalgia prior to her compensable injury, and claimant's treating
physician opined that her pre-existing fibromyalgia played a greater role in her inability
to return to full-duty employment than did her mechanical back problem. However, a
rheumatologist believed that claimant's mechanical back problem was responsible for her
pain and that "the back problem is fanning the fibromyalgia." On October 9,
1997, the treating physician reported that "it's not really clear what the source of
[claimant's chronic pain problem] is; that is, it could be related to her chronic
myofascial pain; it may be related to scar tissue in her back or just a chronic muscular
problem." On November 6, 1997, however, less than a month later, and without further
examining claimant, and without articulating any basis for a different opinion, the
treating physician opined that claimant's pain was not related to her accident of
September 7, 1994, but that her chronic pain problem stemmed from the pre-existing
fibromyalgia. Although the opinion of the treating physician is entitled to great
weight, see Pilot Freight Carriers v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986), "[m]edical evidence is not necessarily conclusive,
but is subject to the commission's consideration and weighing." Hungerford
Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991). Given
the absence of any further examination of the claimant or an additional report supporting
the treating physician's change of opinion, the commission was free to reject the
treating physician's opinion as to causation. Once the commission rejected this
opinion, no evidence in the record proved that claimant's ongoing disability was not
causally related to her compensable injury. Additionally, a neurologist was unable to
conclude that claimant's ongoing pain was caused solely by her pre-existing
fibromyalgia.
The neurologist's testing resulted in objective findings which implicated sources for
claimant's ongoing pain other than, or in addition to, claimant's
fibromyalgia. Mary Washington
Hospital v. Patricia B. Holloway, Record No. 1582-98-2 (March 30, 1999).
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The exacerbation of a pre-existing injury constitutes
a new compensable
accident where it arises out of and in the course of employment. See Ohio Valley
Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985) (a new injury which
exacerbates a previous condition resulting in accelerated disability is compensable).
Where an employee's accident causes increased injury and disability, even though to the
same anatomic area of a previous condition which continued to be symptomatic, the second
accident establishes an independent injury under the Workers' Compensation Act where it
arises out of and in the course of the employment. See Pelerin v. Hematology and
Oncology Assocs., Ltd., 67 O.I.C. 212 (1988). A. D. Stowe v. Otis Wayne Ricks,
Record No. 2704-98-1 (April 27, 1999). WP
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The commission was unwilling to infer causation
under the facts of this case. Liddell
admitted that she suffered from significant
pre-existing shoulder problems. On
September 30, 1996, Dr. [Robert] Stinger
indicated that [Liddell's] work injury had
resolved. [Liddell's] rotator cuff tears
were not diagnosed until March 1997. At
that time, Liddell was diagnosed with a
rotator cuff tear of the right shoulder as
well as the left shoulder, even though there
is no evidence that the right shoulder was
injured at the time of her industrial
accident. Under these facts, we can only
speculate whether the claimant's left
rotator cuff tear was caused by the work
accident . . . .
The commission's findings are amply supported by the
record. Based upon the lack of any persuasive medical evidence
to connect Liddell's left shoulder rotator cuff tear with her
compensable work injury, we cannot say as a matter of law that
her evidence sustained her burden of proving causation. Ruth
Liddell
v.
INOVA Fairfax Hospital, Record No. 2746-98-4 (May 18, 1999). WP
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"A
finding that a pre-existing condition was accelerated or aggravated by
an injury sustained in an industrial accident establishes a causal
connection between the injury and the disability and the disability
resulting therefrom is compensable under the Workers' Compensation
Act." Corning, Inc.
v. Testerman, 25 Va. App. 332, 340, 488 S.E.2d 642, 645 (1997)
(citations and internal quotations omitted). Basic
Construction Company v. Hamilton, Record No.
2844-98-1 (August 17, 1999). WP
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On
April 29, 1996, claimant strained his back while working in a manhole. He
felt a "bad pop" in his back and a "shock" from the
"top of [his] head to the bottom of [his] feet." claimant had a
history of spondylolisthesis and prior back injuries. an MRI exam on May
3, 1996, revealed Grade I spondylolisthesis at L5-S1, minimal disc
protrusion at L3-4 and L4-5 with degenerative disc disease, and
"findings suspicious for herniated nucleus pulposus." Another
MRI several weeks later revealed a bulging disk at C4-5 and C5-6 and a
herniation at C6-C7. On October 9, 1996, claimant’s treating physician
performed a lumbar fusion at L4-5 and L5-S1. Claimant’s neck and arm
complaints continued and claimant’s doctor believed the back injury and
neck injury and treatment was causally related to the work-related
incident on April 29, 1996. Claimant underwent anterior cervical
diskectomy on February 26, 1997. Although another doctor disagreed with
the treating physician’s opinions on causation, credible evidence in
the record established a causal connection between the accident on April
29, 1996 and claimant's continued back disability and treatment and his
neck injury and treatment. "`So long as a causal relationship
between the industrial accident and the . . . [treatment rendered] is
shown, the employer is financially responsible for the medical attention
which the attending physician deems necessary.'" Papco Oil Co. v.
Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg
Foundry Co. v. Goad, 15 Va. App. 710,714, 427 S.E.2d 215, 217-18
(1993)). Claimant was treated conservatively at first before surgery for
his injuries caused by his accident was attempted. Claimant's treatment
was necessary and reasonable. "Whether an employer is responsible
for medical expenses . . . depends upon . . . (3) whether the treating
physician made a referral to the patient." Volvo White Truck Corp.
v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). When
claimant’s treating physician decided to relocate his practice, he
recommended Dr. Joiner for further treatment but claimant requested a
referral to Dr. Knox and Dr. Mathews. The treating physician, in
attempting to accommodate the wishes of a rehabilitation nurse and
claimant, created a situation where the nurse believed the referral was to
Dr. Joiner and claimant believed the referral was to Drs. Knox and
Mathews. Drs. Knox and Mathews became claimant's authorized treating
physicians. City
of Martinsville v. Timothy Scott Turner, Record No.
2753-98-2 (July 27, 1999). WP
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Sec. 65.2-402(C) presumption requires proof of cause. After
30 years with the fire department, Claimant was diagnosed with prostate
cancer, an ordinary disease of life of unknown etiology. Claimant's evidence, however, documented an exposure to
cadmium, a substance identified as carcinogenic by the International
Agency for Research on Cancer (IARC), as a suspected cause of prostate
cancer. Code Sec. 65.2-402(C), provides, in pertinent part, that “prostate
cancer, caused by a documented contact with a toxic substance that a . . .
fire fighter . . . has encountered in the line of duty and that causes . .
. any health condition or impairment[,] . . . shall be presumed to be an
occupational disease, suffered in the line of duty, that is covered by
this title, unless such presumption is overcome by a preponderance of
competent evidence to the contrary. For
the purposes of this section, a ‘toxic substance’ is one which is a
known or suspected carcinogen, as defined by the International Agency for
Research on Cancer [IARC], and which causes, or is suspected to cause, . .
. prostate . . . cancer.” Code Sec. 65.2-402
(C) explicitly
provides that the presumption of occupational disease applies to prostate
cancer "that is caused by a documented contact with a toxic
substance." Claimant was not entitled to the statutory presumption
of occupational disease because he did not prove that exposure to the
toxic substance cadmium "caused or contributed to cause, his prostate
cancer." Newell
E. Whitehead, Jr. v. City of Portsmouth FD, Record No. 2975-98-1
(July 27, 1999). WP
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Need for Medical Opinion on
Causation Issue. The Workers' Compensation Commission
("commission") did not err in finding that the claimant failed
to prove that (1) his varicose veins were caused by a physical therapy
session on September 19, 1997 necessitated by his compensable August 5,
1997 left knee injury; and (2) his post-September 25, 1997 disability was
causally related to his compensable August 5, 1997 injury by accident.
There was no opinion from any physician causally relating the
claimant's varicose veins or claimed disability to his accident or his
physical therapy for his left knee injury sustained in that
accident. For the Commission to infer such a causal relationship
would be mere speculation without any expert guidance from the
physicians who have examined the claimant. Vagharshak
A. Vartanian v. Advantage Auto Stores, Record No. 2048-98-4
(September 28,1999). WP
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The commission did not err in
finding that claimant's generalized dystonia is causally related to her
industrial accident of October 23, 1990. Claimant, a preschool teacher,
fell as she was entering her vehicle, which was parked in the driveway of
a student she was visiting in the course of her employment. Claimant
received six stitches on her head. In addition to the laceration on her
head, claimant suffered a sore and stiff back and neck. Claimant's back
pain did not abate over the years and she developed spastic, uncoordinated
patterns of movement ultimately diagnosed as dystonia. Although claimant's
earlier physicians had not accurately diagnosed claimant's condition, the
commission was persuaded by Dr. Grill's observation that a person
suffering from a movement disorder may go undiagnosed for years, unless
detected by a physician experienced in the field. The commission resolved
the various conflicts in the evidence and found credible evidence
establishing a causal relationship between the claimant's work-related
trauma and the dystonic symptoms she experienced. Fairfax
County School Board v. Sally Ann Presti, Record No. 3010-98-4
(October 19, 1999). WP
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Claimant fell, attempted to
break her fall with her right hand, and hit her chin on the sidewalk. She
suffered abrasions to her right hand and chin. Subsequent medical
treatment revealed that claimant was suffering from an abscess in the
psoas muscle. Initially, her treating physician found no obvious cause of
the abscess, but later, an unnamed consultant on infectious diseases
suggested as follows: "Staph aureus most likely developed [as a
result of] seeding from a transient bacteremia [at] hand scrape upon fall
4/3," resulting in a psoas abscess. The treating physician then
stated that the infectious disease consultant had opined that claimant's
staph infection was likely derived from the abrasions she sustained in the
April 3, 1998 fall. The treating physician further stated that he did not
have "any other explanation for why [claimant] developed a staph
abscess in her psoas." The treating physician concluded that
"attributing the staph abscess to a bacteremia from such a scrape
would be certainly possible. I would support that hypothesis given no
other information." An Associate Professor in the Division of
Infectious Diseases at Virginia Commonwealth University, reviewed
claimant's entire medical file at the request of employer. The Assistant
Professor opined to a reasonable degree of medical certainty that
claimant's right psoas abscess was not causally related to the April 3,
1998 work-related fall, setting forth a detailed explanation for her
opinion. The commission did not err in finding the claimant had failed
to meet her burden of proving the abscess was caused by her compensable
accident. The claimant has, at most, presented evidence that
suggests two or more equally likely causes of the claimant's psoas abscess.
The opinion of the claimant's treating physician is entitled to less
deference for lack of an independent, objective basis for his diagnosis,
we accord the conflicting, expert testimony of the employer's
independent medical examiner at least as much weight as that of the
treating physician. None of the other physicians involved offered an
opinion that any particular cause "more likely than not" caused
the claimant's psoas abscess. Doris
Patricia Cote v. Western State Hospital, Record No. 1390-99-3
(October 26, 1999). WP
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Claimant's treating neurosurgeon, who began treating
claimant in July 1997 and twice performed surgery on claimant's back,
opined that it was "more likely than not" that claimant's L4-5
disc herniation was caused either directly by the June 23, 1997 injury by
accident or constituted "a natural progression or deterioration"
of the condition caused by that injury by accident.
Another neurosurgeon, who examined claimant and reviewed his
diagnostic studies upon referral from the treating neurosurgeon, opined
that claimant's need for surgery to repair his L4-5 disc defect was
related to the June 23, 1997 injury. An employer’s expert only examined
claimant three times. Another
doctor did not examine claimant at all and merely reviewed his medical
records. Based upon these medical opinions and the medical records, the
commission did not err in concluding that claimant proved a causal
relationship between the L4-5 disc herniation and his compensable June 23,
1997 injury by accident. Where medical evidence conflicts and the treating physician is
positive in his or her diagnosis, then his or her opinion will generally
be afforded greater weight by the courts. See Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572
(1986). Although claimant, just before his October 1997 myelogram CT, felt
a sharp pain when he rolled from his back to his left side while on his
couch at home, the medical records, which documented claimant's
ongoing and continuous back pain before October 1997, and the
opinions of the treating neurosurgeon and the doctor to whom claimant was
referred by the treating neurosurgeon
constitute credible evidence to support the commission's finding
that the sharp pain claimant felt in October 1997 was merely a part of
the ongoing symptoms he had experienced since the June 23, 1997 accident
and did not constitute a new injury. New
River Castings Company v. James Maple, Record No. 1552-99-3
(November 16, 1999). WP
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Employer’s counsel was guilty of the late filing
of a medical report. The deputy commissioner admitted the doctor’s
report into evidence but provided claimant with ample opportunity to
cross-examine the doctor before the record closed.
Claimant elected not to cross-examine the doctor in any manner
whatsoever. Having chosen not
to take advantage of the opportunity to cross-examine the doctor regarding
the medical report, claimant cannot claim that she was prejudiced by the
late filing. The commission did not abuse its discretion in admitting
into evidence the medical report that had been filed late. The
commission also did not err in denying claimant disability benefits
after March 31, 1996 and in denying medical benefits for treatment
incurred after April 25, 1996. In
doing so, the commission relied upon the opinions and medical records
of two doctors and rejected the opinions of two other doctors. The
medical records and opinions of the two doctors relied upon support the
commission’s findings that claimant was not disabled after March 31,
1996 due to the effects of her exposure to Lysol Brand Concentrate at work
in February 1996; that the effects of that exposure ended by April 25,
1996; and that her symptoms thereafter were due to pre-existing conditions
or other causes. The commission articulated sound reasons for giving
little probative weight to the contrary opinions of the two other doctors.
“Medical evidence is not necessarily conclusive and is subject to the
commission’s consideration and weighing.” Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
“Moreover, “[q]uestions raised by conflicting medical
opinions must be decided by the commission.” Penley v. Island
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). Joleane
Dutzman v. J. Douglas Wooddell, DDS, Record No. 1735-99-4
(November 16, 1999). WP
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Based upon the lengthy delay between the time of claimant's compensable
accident and the first documentation of her neurological complaints, the
Workers' Compensation Commission did not err in finding that claimant
failed to prove that her medical treatment after July 17, 1996 and her
disability beginning February 20, 1998 were causally related to her
compensable July 15, 1996 injury by accident. Although claimant testified
that she continuously complained for a year and a half about her
headaches, dizziness, and nausea to her doctor who saw her frequently, the
extensive medical record reflects otherwise. Claimant's neurologic
complaints did not begin until at least nineteen months after her July
1996 accident. Shirley
P. Keesee v. Wise County School Board, Record No. 2273-99-3
(February 8, 2000). WP
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