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.
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.