Opinion
Record No. 0004-93-4
March 1, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Peter J. Jones for appellant.
Edward H. Grove, III (Thomas C. Palmer, Jr.; Brault, Palmer, Grove, Zimmerman, White Mims, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Nell Tackett (claimant) contends that the Workers' Compensation Commission (commission) erred in denying her change in condition application for temporary total disability benefits. Claimant argues that the commission's findings that she was able to return to light duty work and that her current complaints were unrelated to her earlier industrial accident are not supported by credible evidence. We disagree and affirm the commission's decision.
On appellate review, we will construe the evidence in the light most favorable to the party prevailing before the commission.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 not be disturbed on appeal, if supported by credible evidence. Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991).
I.
"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)). Unless we can say as a matter of law that claimant's evidence was sufficient to meet her burden of proof, the commission's finding is binding upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On October 3, 1989, claimant sustained a low back injury while working as a cafeteria worker for the Prince William County School Board (employer). She was first treated by Dr. Anthony Debs, who diagnosed a minor pinched nerve in her lower back and allowed claimant to return to light duty work on April 10, 1990. On April 23, 1990, claimant came under the care of Dr. Robert H. Lehman, who diagnosed a lumbosacral sprain and right sciatic syndrome. In addition, Dr. Lehman concluded that claimant was capable of performing light work. On August 27, 1990, during claimant's last visit to Dr. Lehman, he noted that she could do clerical work with some restrictions. He also stated that he could no longer treat claimant, as she had personally arranged other medical care.
Claimant began treatment with Dr. David G. Borenstein, a physician associated with The Spine Center at George Washington University, Washington, D.C. Dr. Borenstein released claimant to return to light work on January 11, 1991. She returned to work in a clerical position, which required that she work for four and one-half hours each day with no substantial lifting requirements. On February 22, 1991, Dr. Borenstein noted that claimant had been working as a teacher's helper. She generally enjoyed the work and had been able to do it without difficulty.
On that date, as he had done since October 1990, Dr. Borenstein diagnosed claimant's condition as chronic muscle strain, osteoarthritis, meralgia paresthetica, and lumbosacral spondylosis. Claimant told Dr. Borenstein on February 22, 1991 that she had greatly improved since her last treatment. During all of her visits to Dr. Borenstein through April 1991, claimant complained of pain in her right lower back and pain radiating into her right buttock and right leg.
On April 9, 1991, claimant saw Dr. Edward R. Laws at The Spine Center. Dr. Laws noted that claimant had been doing well, but "about two weeks ago [claimant] developed a new complaint of low back and left sciatic pain markedly provoked by standing and physical activity." (Emphasis added.) An MRI scan revealed a disc herniation at L3-4 and a left-sided bulge at L4-5. Subsequent reports from Dr. Borenstein contained a new diagnosis of lumbosacral spondylosis with left radicular pain and indicated that claimant was unable to work. Although Dr. Borenstein wrote on May 19, 1992 that claimant's current condition was caused by her work injury of October 3, 1989, he failed to explain the basis for this conclusion or how the new symptoms were causally related to claimant's earlier accident.
In denying claimant's application, the commission stated:
Upon review of the medical record in this case we find that the evidence does not establish a change in condition attributable to the industrial accident after April 9, 1991. Specifically, we find that the employee returned to light work after approval of such work by David G. Borenstein, M.D., physician in the Spine Center at the George Washington University Medical Center (GWU). The medical evidence is persuasive that the employee was able to return to light work in January, 1991 and that her current back condition is due to new complaints and newly-diagnosed conditions rather than to the industrial accident.
Based upon this record, we find the commission's decision is supported by ample credible evidence. Claimant was able to return to work in January 1991, and based upon her own testimony, she worked without difficulty until March 28, 1991. After that date, the medical records support a finding of a new condition occurring one and one-half years after her compensable industrial accident. There is no persuasive evidence in the record to causally connect this new condition with her accident of October 3, 1989. The commission discounted the opinion of Dr. Borenstein, as he failed to provide any explanation for his new diagnosis and conclusion. Accordingly, we cannot say as a matter of law that claimant met her burden of proving a compensable change in condition.
Because we affirm the commission's decision, we need not address the issues raised in employer's cross-appeal.
For the reasons stated, we affirm the commission's decision.
Affirmed.