Opinion
Record No. 1096-92-4
September 29, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Lawrence J. Pascal; Ashcraft Gerel, on brief), for appellant. Appellant submitting on brief.
(John H. Carstens; Jordan, Coyne, Savits Lopata, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Coleman, and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Robert W. Fletcher appeals from the commission's denial of benefits for a claimed injury by accident. He contends (1) that the preponderance of evidence before the commission proved a compensable injury by accident, and (2) in the alternative, that the preponderance of the evidence proved material aggravation of a pre-existing condition. We affirm the commission's denial of benefits.
Beginning in 1980, Fletcher worked periodically for Hyman Construction. The evidence proved Fletcher had a long history of back complaints. He first complained in 1975 of low back sprain. Medical reports reveal that in 1986, Dr. Fredric Cantor diagnosed low back pain that radiated into Fletcher's right leg. Fletcher was tested in 1988 and diagnosed by Dr. Arthur Litofsky as having extensive degenerative disc disease in his cervical spine. Although Dr. Litofsky advised Fletcher to perform light work, Fletcher did not inform Hyman Construction of that limitation and returned to his strenuous work as a cement mason. In March 1990, Dr. Litofsky noted that Fletcher was experiencing pain in his low back region.
Fletcher was treated by Dr. Frederick Wilhelm in September 1990 for low back pain, which radiated into his legs. Dr. Wilhelm ordered a CT scan examination. Fletcher returned to Dr. Wilhelm on October 1, 1990, to learn the result of the CT scan test. The test report indicated that Fletcher had "a large bulging annulus compressing the thecal sac [at L4-L5 level and] hypertrophic degenerative changes" at several places. During this visit, Fletcher again complained of pain radiating into his legs.
The day following Fletcher's visit to Dr. Wilhelm, Fletcher reported to his supervisor during a lunch break that he had injured his back that morning while moving a scaffold. Fletcher continued to work that afternoon. Indeed, it was not until seven days after the claimed injury that Fletcher went to visit Dr. Michael Lapudula. Fletcher complained of back pain and related the incident of October 2, 1990, as the genesis of his back pain and the pain radiating into his legs. Fletcher later saw Dr. Francisco Ferraz and also gave him a history of injury beginning October 2. Dr. Ferraz ordered a MRI, which revealed the disc problem that was earlier diagnosed by the CT scan report.
Fletcher remained employed with Hyman Construction until January 1991, when he was terminated because of economic conditions in the industry. Upon Fletcher's application for benefits, the deputy commissioner held that the evidence proved a compensable injury but that Fletcher had failed to market his work capacity. On review, the commission found that the evidence did not prove injury by accident and denied Fletcher benefits.
"It is firmly established that a finding by the commission as to questions of fact, if supported by credible evidence, is conclusive and binding upon us." Chandler v. Schmidt Baking Co., 228 Va. 265, 267, 321 S.E.2d 296, 297 (1984). The commission made the following findings:
We have reviewed the claimant's medical records immediately prior to the accident date and immediately after that date. Those records establish that the claimant was suffering from a bulging L4-L5 disc eleven days before the industrial accident. The claimant was informed of the result of the September 21, 1990 CT Scan the day before the alleged industrial accident. The MRI, some nine days after the accident, revealed the same findings. We recognize that Dr. Litofsky has also diagnosed a lumbar strain but there were no objective findings supporting this diagnosis. At the same time, this was a reasonable diagnosis given the history of an accidental injury and the subjective complaints. There is no evidence that the three physicians noted above, who have related the claimant's low back condition to an industrial accident, were aware of the CT scan of September 21, 1990. Their conclusions regarding a causal connection between a work-related injury and the bulging lumbar disc are therefore flawed by this lack of information.
The uncontradicted evidence was sufficient to prove that the bodily injury Fletcher complained of after October 2 was the same bodily injury he had prior to October 2. The MRI report states that Fletcher had a disc herniation at L4-L5, the same finding contained in the September 1990 CT scan report. The commission properly chose not to ignore Fletcher's prior medical history merely because Dr. Lapudula and Dr. Ferraz, who did not have the benefit of Fletcher's prior history, made diagnoses based on the history of injury recited to them by Fletcher.
Likewise, the commission did not have to accept Dr. Litofsky's report post-October 2 that Fletcher's back injury was a result of the October 2 incident. Dr. Litofsky's own records disclosed that Fletcher complained to Dr. Litofsky of low back pain in March, 1990. Moreover, in April 1991, when Fletcher took the MRI result to Dr. Litofsky for a second opinion, Fletcher specifically asked Dr. Litofsky not to mention the other complaints for which he had sought treatment.
Accordingly, we conclude that credible evidence in the record supports the commission's finding that Fletcher's complaint of bodily injury was the very same complaint that he voiced prior to October 2, 1990. Nothing in the record supports Fletcher's argument, made for the first time on appeal, that the October 2 incident aggravated his prior condition. The commission made no finding as to that issue because that argument was not presented to it. Moreover, our review of the medical records contains no indication that any doctor made such a diagnosis.
For these reasons the commission's decision is affirmed.
Affirmed.