Opinion
Record No. 0949-94-4
Decided: October 18, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(A. Thomas Lane, Jr., on brief), for appellant.
(R. Ferrell Newman; Glenn S. Phelps; Thompson, Smithers, Newman Wade, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Ronald Hutchinson contends that the Workers' Compensation Commission erred in denying his change in condition application on the basis that the medical evidence did not prove that Hutchinson's disability was causally related to his May 25, 1988 compensable industrial accident. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
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). "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) (citation omitted). Unless Hutchinson's evidence proved as a matter of law that he was disabled from November 2, 1992 until March 16, 1993 as a result of his compensable 1988 industrial accident, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On October 5, 1992, Dr. Frank McCue, the treating orthopedic surgeon, noted that Hutchinson complained of swelling, burning, and pain in his left leg. However, Dr. McCue did not specifically attribute these symptoms to Hutchinson's 1988 industrial accident. An October 28, 1988 EMG revealed that Hutchinson suffered from moderately diffuse peripheral polyneuropathy. On January 18, 1993, Dr. McCue wrote that the polyneuropathy was not due to any specific injury, but that any injury could aggravate this condition. Dr. McCue referred Hutchinson to the University of Virginia neurology clinic ("UVA").
In a December 17, 1992 letter, Dr. William Dawson, a senior resident neurologist at UVA, reported that Hutchinson suffered from multiple musculoskeletal difficulties in the left leg. Dr. Dawson noted that
if a peripheral neuropathy is present, it is only mild in severity. If present, polyneuropathy cannot explain the chronic burning sensation of the left lower extremity. It is doubtful that the burning sensation is due to reflex sympathetic dystrophy because of the absence of vascular changes, skin changes or sweating, nor can the pain be attributed to a radiculopathy or a mononeuropathy based on today's examination. Likely the pain is secondary to musculoskeletal injury.
Dr. Dawson confirmed these conclusions in a January 7, 1993 letter to Dr. McCue. In neither of these letters did Dr. Dawson state that Hutchinson's symptoms were caused by the 1988 industrial injury. In a February 4, 1993 report, Drs. Dawson and Richard Tomasulo concluded that Hutchinson was asymptomatic and that no clear etiology could be found. They also stated that Hutchinson's chronic left knee pain could not be explained on the basis of any nerve injury, and was most likely musculoskeletal in origin.
In denying Hutchinson's application, the commission found that, "[t]o prove causation there must be a showing to within a reasonable medical probability the relatedness to the specific accident, and we find that the treating physician's reports are of insufficient precision in proving that the condition is related to claimant's 1988 accident."
Based upon the lack of any evidence from Drs. McCue, Dawson, or Tomasulo specifically relating Hutchinson's left lower extremity pain to his 1988 compensable industrial injury, we cannot say as a matter of law that the commission erred in denying Hutchinson's change in condition application.
Finally, the commission was entitled to discount Dr. Dawson's October 20, 1993 letter in that it was written eleven months after the alleged period of disability began and eight months after Dr. Dawson had last examined Hutchinson. Moreover, this letter, like Dr. Dawson's previous letters, did not specifically relate Hutchinson's symptoms to the 1988 industrial accident.
For these reasons, we affirm the commission's decision.
Affirmed.