Opinion
Record No. 2009-92-2
May 18, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(G. A. Kalbaugh, Jr.; Claire C. Carr; Kalbaugh, Tuck Pfund, on briefs), for appellant.
(Reginald M. Barley, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
The Henrico County School Board ("Henrico County") contends that the commission erred in finding that Diane J. Speas' September 22, 1991 knee injury was related to her December 1990 compensable knee injury.
On appellate review, we 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).
Speas suffered a compensable left knee injury on December 4, 1990 while working for Henrico County as a school bus driver. On that date, Speas fell over a bus lift and landed on her left knee. From December 6, 1990 through January 28, 1991, she was treated for a contusion to the left knee by Dr. Jeffrey Wilson. Speas testified that, even after her treatment with Dr. Wilson ended, she continued to have constant pain in her knee, was unable to stoop or to put weight on the knee, and started forming a knot on the knee. Speas testified that, although she ultimately returned to work after the December 1990 injury, she never regained full use of her left knee.
On September 22, 1991, Speas was proceeding down the stairs at her home and, as she put her left foot down, her left knee gave way, causing her to fall. When she got up, there was no stability in her left knee. Speas testified that she did not slip and there was no defect in the stairs. The next morning her knee was painful and would not bend.
On September 23, 1991, Speas saw Dr. Kenneth H. Roberts, who referred her to an orthopedic surgeon, Dr. John D. Bowman. On October 22, 1991, Dr. Bowman performed arthroscopic surgery on Speas' left knee. As a result of the surgery, Dr. Bowman discounted the notion that Speas suffered a tear to her medial meniscus, but he did find a small erosion of the distal femoral articular cartilage. In his November 1, 1991 office notes, Dr. Bowman stated that the "finding in [Speas'] knee was completely consistent with the fall and the direct blow to her knee she describes from December [1990]." Moreover, in his June 1992 deposition, Dr. Bowman, referring to his November 1, 1991 office notes, stated that the December 1990 fall was one of the contributing causes of the September 1991 fall. As stated in his February 10, 1992 letter to the Henrico County adjuster, Dr. Bowman could not say that the September 1991 fall was solely related to Speas' December 1990 compensable injury or greater than fifty percent related to that injury; however, he could state that it was a contributing cause.
At the request of Henrico County, Speas also saw Dr. Wilson after the September 1991 fall. Dr. Wilson, who had previously examined Speas after the December 1990 fall, stated in his January 31, 1992 letter to Sheila Caudill, claims adjuster for Henrico County:
I feel Ms. Speas' second knee injury is directly related to the workers' compensation injury to the knee initially. With the type of patellar compression she had, it is very possible her knee could have given way from reflex quad spasm and this is why she fell, contusing it a second time. . . .
Henrico County contends that the commission should have relied upon the "just as probable rule" instead of the "two causes" rule to find that Speas did not carry her burden of proving that her September 1991 injury was related to her compensable injury of December 1990.
"Under the 'two causes' rule if a disability has two causes, one related to employment and one unrelated, benefits are allowed." Shelton v. Ennis Business Forms, Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985) (citing Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28-29, 294 S.E.2d 805, 807-08 (1981);Bergmann v. L W. Drywell, 222 Va. 30, 32, 278 S.E.2d 801, 802-03 (1981)). Whereas, "[t]he 'just as probable' rule denies compensation for failure of a claimant to sustain the burden of proof where it is just as probable that the disability resulted from a work-related cause as from a non-work related cause."Shelton, 1 Va. App. at 55, 334 S.E.2d at 299.
Dr. Wilson clearly stated that Speas' September 1991 knee injury was "directly related" to her initial injury of December 1990. Moreover, Dr. Bowman's office notes, letter and deposition testimony clearly demonstrate his belief that the December 1990 injury was a contributing cause to the second fall. Although Dr. Bowman could not assign a specific percentage to the role which the first injury had in contributing to the second injury, he was not required to do so where, as here, he stated that the first injury "contribute[d]" to the second injury. The "just as probable rule" does not apply where neither Dr. Wilson nor Dr. Bowman have given their opinions in terms of Speas' disability resulting from a work-related cause versus a non-work related cause. As stated by the full commission, "[b]oth treating orthopedists reported that the residual weakness [caused by the December 1990 injury] at least contributed to the fall [of September 1991]." Thus, the commission did not err in invoking the "two causes" rule in Speas' favor.
Speas' request for attorney's fees is denied. For the reasons stated, we affirm the commission's decision.
Affirmed.