Opinion
Record No. 0147-93-3
August 17, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Daniel Schorsch; Poindexter, Schorsch Patterson, on briefs), for appellant.
(Steven H. Theisen; Midkiff Hiner, on brief), for appellees.
Present: Judges Barrow, Koontz 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.
Eugene Campbell Jenkins contends that the commission erred in finding that he failed to prove the requisite causal connection between his August 24, 1987 compensable accident and his subsequently diagnosed lower back condition. Jenkins also contends that the doctrine of compensable consequences entitles him to an award.
"The actual determination of causation is a factual finding that will not be disturbed on appeal if there is credible evidence to support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). Where there is no conflict in the evidence, the question of the sufficiency thereof is one of law. Payne v. Master Roofing Siding Co., 1 Va. App. 413, 414, 339 S.E.2d 559, 560 (1986). On appeal, 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). Unless we can say as a matter of law that Jenkins' evidence was sufficient to sustain his burden of proof, then the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Jenkins sustained a compensable injury to his right arm and neck on August 24, 1987, for which an award was entered. On July 10, 1992, he filed an application for hearing alleging that the employer should be held responsible for medical treatment rendered to him for a herniated disc at the L5-S1 level on the left.
Jenkins' complaints of low back pain were first documented in March 1992, some four and one-half years after the compensable accident. An MRI performed on March 18, 1992, revealed that Jenkins was suffering from a herniated disc at the L5-S1 level on the left. Prior to this time, all of Jenkins' complaints related to his right arm and neck.
Dr. Thomas J. Spicuzza, neurologist, began treating Jenkins on October 9, 1990. He diagnosed the herniated L5-S1 disc and reported in May 1992 that it "certainly must be related to the original injury . . . although overshadowed by the magnitude of the cervical spine injury initially." He based this opinion on his belief that Jenkins had engaged in no activities since the original injury which could produce such a finding, and on the theory that lumbar and cervical spine problems often go hand-in-hand with one another. Dr. Spicuzza also stated, on August 3, 1992, that the fact that Jenkins had been sleeping in a recliner for some period of time "has not helped the low back problems at all but it is still my contention and impression that the problem was caused by the initial injuries."
The commission did not find Dr. Spicuzza's reports persuasive. Dr. Spicuzza's statements regarding causation were found to be insufficient to establish a causal connection, especially where he did not offer any explanation for his opinion made some four years after the compensable right elbow injury. Dr. Spicuzza assumed that Jenkins did not perform any activities over a four year period which could have caused the low back condition. Moreover, Dr. Spicuzza's statement that cervical and lumbar spine problems often go hand-in-hand does not reveal whether this is actually what occurred in Jenkins' case or why it occurred. Finally, Dr. Spicuzza never specifically stated that sleeping in the recliner was a result of the original injury or that sleeping in the recliner caused Jenkins' herniated disc at the L5-S1 level on the left.
Based upon the foregoing evidence and findings, we cannot say that, as a matter of law, Jenkins sustained his burden of proving that his low back condition, which first appeared in March 1992, was caused by his industrial accident of August 24, 1987.
Jenkins also asserts that the doctrine of compensable consequences applies because of the effect of sleeping in a chair for so many years due to the pain from the accident. However, in order for the doctrine of compensable consequences to apply, it must be shown by the evidence that a causal connection between the initial injury and the subsequent injury has been established. See Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 794, 407 S.E.2d 1, 3 (1991) (citation omitted). Jenkins failed to show the required causal connection and therefore, the doctrine of compensable consequences does not apply.
For the reasons stated, we affirm the commission's decision. Affirmed.
On March 28, 1993, Jenkins, by counsel, filed a motion to exclude certain materials from the record. Appellees, by counsel, filed a response to that motion on April 5, 1993. Upon consideration whereof, the motion to exclude is denied.See Rule 5A:7(b).