Opinion
Record No. 1325-93-1
Decided: June 14, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
William C. Walker (Taylor Walker, P.C., on brief), for appellants.
Karen M. Rye, for appellee Will H. Crane.
Ralph E. Lawrence (White, Johnson Lawrence, P.C., on brief), for appellee Aetna Casualty Surety Company.
(Peter C. Manson, Jr.; Taylor Walker, P.C., on brief), for appellee International Insurance Company/Crum Forster Group.
Present: Judges Barrow, Benton and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Union Brick Construction Company and Hanover Insurance Company contend that the commission erred in finding that Will H. Crane's condition was causally related to his original May 9, 1986, industrial accident, and in finding that the wages paid Crane for the week of January 11, 1990, were compensation. We disagree and affirm the decision of the commission.
On May 9, 1986, while working for Union Brick Construction Company, Crane slipped on a roof and twisted his back. He was treated by Dr. Young, who referred him to Dr. Penix, a neurosurgeon. Dr. Penix released him to light work beginning August 21, 1986.
Crane returned to duty in 1987 as a supervisor, a task suitable to his restrictions. Between then and January 1990, he suffered back pain occasionally but did not miss time from work. Dr. Penix attributed these complaints to "yet another of his flare-ups of low back pain, this time accompanied by some numbness radiation toward the left anterior thigh and aching sensation behind the right knee." Drs. Young and Penix continued to treat him.
On January 10, 1990, Crane tripped over a pile of brick and wrenched his back. He experienced sharp pain and then numbness in his leg. Drs. Young and Penix treated him for this injury. Although this injury caused him to miss one week from work, Union Brick paid him full wages.
On June 20, 1991, while Crane stood on a ladder, his foot slipped, causing him to grab the ladder quickly to keep from falling to the ground. Several hours later, he began experiencing a burning sensation in the back of his right leg.
On July 30, 1991, Crane slipped at work and again wrenched his back. This incident caused a sharp pain in his lower back, radiating down to his right leg. The next day, he could barely raise his right foot from the accelerator of his car to the brake pedal.
The medical records show a continuing course of treatment by Drs. Young and Penix. A December 1990 neurological examination by Dr. Penix found Crane to be normal. On August 8, 1991, Dr. Penix compared x-ray film taken that day to x-rays taken in 1988 and 1989 and commented that he did "not see any difference in the three sets of x-ray films." Dr. Young, in his March 7, 1992, deposition, stated that Crane's "original problem started in 1986. And I think all of these [subsequent] episodes are a flare-up of his pre-existing condition." He testified that Crane's bulging discs at L3-4 and L4-5 first appeared in 1986, causing Crane to suffer from nerve root irritation since that time. On May 11, 1992, Dr. Young found degenerative changes in three of Crane's lumbar discs and an annular tear with nuclear herniation on the right side of his back. This condition required Crane to have surgery later that year.
Crane filed for benefits, including change in condition benefits, on January 8, 1992. The commission found that the events on January 10, 1990, June 20, 1991, and July 30, 1991, merely aggravated the pre-existing injury suffered May 9, 1986.
On May 9, 1986, Hanover Insurance Insurance Company provided workers' compensation coverage to Union Brick Construction Company. On the occasions of Crane's subsequent accidents, that coverage was provided by International Insurance Company/Crum Forster Group and Aetna Casualty Surety Company.
Union Brick first contends that Crane failed to prove that his partial disability beginning October 11, 1991, and total disability beginning May 29, 1992, were causally related to his May 9, 1986, accident. It argues that the fact that each of the three subsequent accidents would have been compensable proves that they were causally independent of the first injury. It also argues that neither Dr. Young nor Dr. Penix could identify which of the four accidents caused Crane's herniated disc. We disagree.
Credible evidence supports the commission's finding that Crane's disability related to his original injury. Those findings are conclusive. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Dr. Young reported that "all of [Crane's] subsequent injuries have caused him to aggravate his pre-existing condition, which has caused him to aggravate his symptoms and he had to be treated for that." Dr. Young's detailed and well-documented medical opinion was accepted by the commission. Furthermore, Crane's subsequent injuries did not result in an "obvious sudden mechanical or structural change in [his] body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 864 (1989). Rather, they merely aggravated a pre-existing condition for which the insurance company covering the original accident is responsible.
Union Brick next contends that the commission erred in finding that the payment of one week's salary, in lieu of compensation and pursuant to Code Sec. 65.2-708(C), provided a vehicle for entry of an award nunc pro tunc January 10, 1990. It argues that although the commission awarded Crane compensation for one week, beginning January 11, 1990, it did not find that he suffered an injury causing him to miss this week of work. Rule 13 states that compensation may not be awarded more than ninety days prior to the filing of an application for a change in condition. Thus, Union Brick argues, the entry of an award applying more than ninety days prior to the filing of the change in condition application was error and Crane's January 8, 1992, application was not filed within two years of the predicate accident, Code Sec. 65.2-601, or within two years after the last payment of compensation. Code Sec. 65.2-602. We disagree.
All wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to his pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation.
Code Sec. 65.2-708(C).
Crane never returned to his pre-injury work, and his physicians never released him from restrictions. Rather, Crane worked within those restrictions as a supervisor, being paid more than his pre-injury wage. Union Brick's payment of one week's wages to Crane for the week of January 11, 1990, was compensation. See Cohen v. Fairfax Hosp. Ass'n, 12 Va. App. 702, 705-06, 407 S.E.2d 329, 331 (1991). This payment brings Crane's change of condition application, filed January 8, 1992, within the twenty-four month limit of Code Sec. 65.2-601 and within the operation of Code Sec. 65.2-602.
For these reasons, we affirm the decision of the commission.
Affirmed.