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MEDICAL REPORTS
The term "medical report" is not defined in Code Sec. 65.2-603 to include reports of licensed professional counselors. If the general assembly intended that the reports of licensed professional counselors be considered as medical reports it could have specifically provided for such. It did so for chiropractor's treatment reports. See Code Sec. 65.2-603(D). "While the . . . Act is to be liberally construed for the employee's benefit, that policy does not authorize the amendment, alteration or extension of its provisions beyond its obvious meaning." Gajan v. Bradlick Co., Inc., 4 Va. App. 213, 217, 355 S.E.2d 899, 902 (1987).
In Peninsula Transp. Dist. Comm'n. v. Gibbs, 228 Va. 614, 324 S.E.2d 662 (1985), the Supreme Court denied benefits because the claimant refused treatment by a panel physician and instead sought treatment from her family physician. The Court held that the claimant was "under a duty to choose a physician from the panel." Id. at 618, 324 S.E.2d at 664.
Legal Ethics Opinion 1726 (12-10-98). An attorney may prepare a medical report on the doctor’s stationary for a doctor’s signature for submission to the VWC, if: (1) the content of the report honestly captures the testimony the doctor wishes to present (as opposed to lawyer-created testimony that the lawyer wishes to present irrespective of the doctor’s own testimony); and (2) the report is reviewed, adopted and signed by the doctor voluntarily. The attorney must be alert to DR 7-103 (B) that in dealing with an unrepresented person, a lawyer shall not state or imply that he is disinterested and may have to clarify his or her role in the case to the doctor. An attorney also must not represent that the doctor prepared the report. DR 1-102 (A) (4). The attorney may, however, say that the report is the report “of Dr. X,” or is "Dr. X's report."
In McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), the Court of Appeals held that under common law rules of evidence, medical histories are admissible substantively as party admissions. Thereafter, the Court of Appeals recognized in Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d 541 (1995), that, under Rule 2.2 of the Rules of the Workers' Compensation Commission, the commission may consider medical histories in determining how an accident occurred. Rule 2.2 gives the commission "'[t]he discretion to give probative weight to hearsay statements in arriving at its findings of fact.'" Oliver, 20 Va. App. at 319, 456 S.E.2d at 544 (quoting Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)). Bobby Morton v. Servicemaster Consumer Service, Record No. 2326-98-2 (May 4, 1999). WP Version.
To establish a prima facie claim for compensation for an "injury by accident" arising out of and in the course of the employment, the claimant must prove, by a preponderance of the evidence, (1) an identifiable incident, (2) that occurred at some reasonably definite time, (3) with an obvious, sudden mechanical or structural change in the body, and (4) a causal connection between the incident and the bodily change. See Code Sec. 65.2-101; Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990); Aistrop v. Blue Diamond Coal Co., Inc., 181 Va. 287, 293, 24 S.E.2d 546, 548 (1943). "[A]n injury resulting from cumulative trauma caused by physical exertions inherent in the employee's normal work is not an 'injury by accident,' compensable under the Worker's Compensation Act." Kraft Dairy Group, Inc. v. Bernardini, 229 Va. 253, 256, 329 S.E.2d 46, 48 (1985). A patient's medical history [I]s admissible to explain the basis of the doctor's opinion, or to impeach (as with a prior inconsistent statement), or to corroborate (as with a prior consistent statement) the claimant's testimony. Also, if a claimant has given a history that negates the hearing proof of a compensable injury, then such history would constitute an admission by a party, admissible when offered by an adverse party as an exception to the hearsay rule. McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995) (citation omitted). As in McMurphy, the commission in this case "should have considered the medical histories . . . because the histories contradicted [claimant's] hearing testimony of how the accident occurred." Id. at 59, 455 S.E.2d at 267. As in McMurphy, "[b]y failing to consider these statements, the commission ignored relevant evidence that supported the appellant['s] position and, when coupled with other evidence, this action may have affected the outcome of this case." Id. at 60, 455 S.E.2d 267 For this reason, the case is remanded for review by the commission so it may properly consider all relevant evidence. Southside Virginia Training Ctr. v. Jones, Record No. 2898-98-2 (January 11, 2000). 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.
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