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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.
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 physuician 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.
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