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Caputo v. Mills Settlers

Court of Appeals of Virginia. Alexandria
Feb 16, 1993
Record No. 0710-92-4 (Va. Ct. App. Feb. 16, 1993)

Opinion

Record No. 0710-92-4

February 16, 1993

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

James R. Becker for appellant.

Cathie W. Howard (William B. Pierce, Jr.; Williams, Butler Pierce, on brief), for appellees.

Present: Judges Barrow, Benton and Coleman

Argued at Alexandria, Virginia


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


Michael Caputo appeals the Workers' Compensation Commission's denial of his application for benefits based on a change in condition. Caputo contends that the commission erred because (1) it required that Caputo's physicians make a "positive statement" in the medical reports that Caputo's recurrent lower back pain was causally related to his original industrial injury of October, 1988, and (2) it required a written work restriction from a physician in order to sustain his burden of proving that he is partially disabled. Caputo also requests that we reconsider our denial of his motion to remand his claim to the commission to receive additional evidence to prove his change in condition. For the reasons that follow, we hold that the commission did not err, and we decline to reconsider this Court's decision denying Caputo's motion to remand the case.

A claimant who applies for additional disability benefits based on a change in condition bears the burden of proving the change in condition by a preponderance of the evidence. Great Atlantic Pacific Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). A "change in condition" under the Act is defined as a change in the employee's capacity to work that is causally related to the industrial injury originally compensated. AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881 (1990) (quoting King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984)). Whether a claimant's recurrent incapacity to work is causally related to the original industrial injury is a factual finding that is binding on appeal if supported by credible evidence. Board of Supervisors v. Martin, 3 Va. App. 139, 142, 348 S.E.2d 540, 541 (1986),appeal dismissed, 363 S.E.2d 703 (1987).

The commission found that Caputo failed to sustain his burden of proving that his lower back pain was causally connected to his original industrial injury of October, 1988, or that the low back pain disabled him from working. Specifically, the commission found that

the medical evidence [was] not persuasive in proof of causal connection between the muscular back strain in October, 1988, which had apparently resolved in April, 1989, and the employee's complaints of back pain commencing in May, 1990. . . . Indeed, there is no positive statement of causal relationship from any physician.

In finding the evidence insufficient to prove work disability, the commission noted that "there [was] no statement or indication by any physician of inability to work due to painful back symptoms."

The commission's finding that Caputo failed to prove either a disability or a causal relationship between his current pain and his original industrial injury is supported by credible evidence. Six months after the October, 1988, injury, Caputo was released to return to full-time work. When last seen by Dr. Wang in April, 1989, Caputo reported "no significant back pain." Caputo did not see Dr. Wang again until May 14, 1990, when Dr. Wang noted that Caputo's current lower back pain was "secondary to degenerative joint disease." Dr. Wang referred Caputo to Dr. Lee, who noted that Caputo had undergone lumbar surgery in 1973 and concluded that he suffered from "post laminectomy intermittent lower back pain with borderline dysfunctional spinal mobility." Dr. Rowlingson examined Caputo on October 2, 1990; he also characterized Caputo's condition as "post laminectomy syndrome with low back strain." Neither Dr. Wang, Dr. Lee, nor Dr. Rowlingson stated in their reports that Caputo's symptomatology was related to his October, 1988, industrial accident. When the employer's insurer specifically asked one of the physicians to clarify the cause of Caputo's back pain, the physician responded that he could not conclude with certainty that Caputo's pain was caused by the 1973 lumbar surgery and opined that the symptoms were "possibly related" to the October, 1988, injury.

The commission's finding that the evidence was insufficient to prove that Caputo's back pain was caused by the October, 1988, injury was based primarily on Dr. Wang's impression that the back pain was caused by degenerative joint disease and on the "subsequent equivocation" by the other physicians, who were unable to say whether the current symptoms resulted from the 1973 laminectomy or the October, 1988, industrial injury. Caputo is incorrect in his assertion that the commission imposed a legal requirement that in order to prove his claim, one of the physicians must make a "positive statement" of a causal relationship between the current back pain and the October, 1988, injury. The commission imposed no such requirement. The commission merely mentioned in its opinion the lack of a positive medical statement as a comment on the insufficiency of proof of causation.

Additionally, the commission did not, as Caputo argues, impose a legal requirement that one of the physicians must give a written work restriction in order to prove a disability. Again, the commission's statement that none of the doctors reported an incapacity to work was nothing more than a comment on the general lack of proof that the claimant was disabled. Evidence of lower back pain, without more, does not necessarily prove incapacity to work. Although Dr. Lee reported that Caputo suffered from borderline dysfunctional spinal mobility, no evidence was adduced to prove that Caputo's spinal immobility prevented him from performing his job duties. Because the evidence supports the commission's finding that Caputo failed to prove a disability that was causally connected with his industrial injury, the commission did not err in denying Caputo's application for benefits based on a changed condition.

A panel or judge of this Court ruled that we would not remand Caputo's claim to the commission to reconsider additional evidence because Caputo had failed to file with the commission in a timely manner the evidence that was available and known to him. Caputo does not allege new grounds for the motion to remand and does not claim or show that this Court erred in its earlier denial of the motion. Therefore, this Court's earlier ruling is binding.

Affirmed.


Summaries of

Caputo v. Mills Settlers

Court of Appeals of Virginia. Alexandria
Feb 16, 1993
Record No. 0710-92-4 (Va. Ct. App. Feb. 16, 1993)
Case details for

Caputo v. Mills Settlers

Case Details

Full title:MICHAEL DOMINIC CAPUTO v. WYATT A. MILLS AND EARLY SETTLERS INSURANCE…

Court:Court of Appeals of Virginia. Alexandria

Date published: Feb 16, 1993

Citations

Record No. 0710-92-4 (Va. Ct. App. Feb. 16, 1993)