Opinion
Record No. 1612-94-3
Decided: January 3, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Raymond J. Sinnott, III; Gary R. Reinhardt; Sinnott, Nuckols Logan, on briefs), for appellant. Appellant submitting on briefs.
(Terry L. Armentrout, on brief), for appellee. Appellee submitting on brief.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Overnite Transportation Company, Inc. (employer) contends that the Workers' Compensation Commission (commission) (1) did not have jurisdiction to hold employer responsible for the cost of back surgery proposed for Clarence E. Emore, Jr. beyond the time set forth in a settlement order previously entered into between the parties; and (2) erred in holding that the evidence established a causal connection between Emore's compensable September 13, 1989 industrial accident and the proposed back surgery. For the reasons stated below, we affirm the commission's decision.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
I. Background
Emore suffered a compensable back injury on September 13, 1989 while working for employer. On August 13, 1991, the commission entered an order approving a settlement agreement submitted by the parties in July 1991. The agreement provided for employer to pay Emore a lump sum of $20,000 and to leave medicals open for one year from the date of the commission's order approving the settlement.
On May 22, 1992, Dr. Henry A. Yancey, Jr., an orthopedic surgeon, examined Emore. In his May 22, 1992 letter to Emore's vocational counselor, Dr. Yancey opined that "successful decompression without complications . . . would help [Emore's] back and leg problem, particularly spine fusion would help his facet joint arthritis and painful motion at this level." Dr. Yancey stated that Emore wanted to have surgery. On June 14, 1992, Dr. John W. Forbes, III asked employer to pay for the surgery which Dr. Yancey recommended. Dr. Forbes stated that, based upon Dr. Yancey's findings, Emore should be allowed to have the surgery. On June 22, 1992, Emore filed an application alleging a change in condition and requesting that employer be held responsible for the cost of the proposed back surgery.
II. Jurisdiction
The commission found that Emore's request for additional surgery benefits was timely and that the medical necessity and reasonableness for the surgery was established by Dr. Yancey's May 22, 1992 report and Dr. Forbes's June 14, 1992 report.
Contrary to employer's assertions, this case is controlled by our decision in Dunrite Transmission v. Sheetz, ___ Va. App. ___, 446 S.E.2d 473 (1994). In Dunrite, this Court held that where a recommendation for surgery was made approximately four and one-half months prior to the expiration of the period for payment of medicals as provided for in a settlement agreement and the employee filed an application prior to the expiration of such period, the period was tolled and the employer was required to pay for the cost of the surgery. Id. at ___, 446 S.E.2d at 475.
The May 22, 1992 and June 14, 1992 reports of Drs. Yancey and Forbes establish that the proposed back surgery was reasonable and necessary. These reports were generated prior to the expiration of the one-year period set forth in the settlement agreement. Moreover, Emore filed his application for hearing seeking to hold employer liable for the cost of the surgery before the expiration of the one-year period.
Accordingly, the commission did not err in considering this issue and in ordering employer to pay for cost of the proposed back surgery.
III. Causation
The commission also found that Emore met his burden of proving that the proposed back surgery was causally related to his September 13, 1989 compensable industrial accident. This finding is supported by the December 21, 1992 report of Dr. David C. Urquia. In that report, Dr. Urquia opined that the prime source of Emore's current problems was his September 13, 1989 industrial accident, which aggravated his preexisting back condition.
Based upon this uncontradicted medical evidence, the commission did not err in finding that Emore proved the requisite causal connection.
For these reasons, we hold that the commission did not err in holding employer liable for the cost of Emore's proposed back surgery. Accordingly, we affirm the commission's decision.
Affirmed.