Opinion
Record No. 0510-93-4
September 28, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Margaret DeFilippis; Ashcraft and Gerel, on brief), for appellant.
(Cathie W. Howard; Williams, Butler Pierce, 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.
Young C. McCoy, Jr. contends that the commission erred in finding that he failed to prove (1) an injury by accident; and (2) a compensable occupational disease.
Background
On April 17, 1992, McCoy filed an application for hearing asserting that, while in the course of his employment with Azalea Acres Nursery Landscaping ("Azalea Nursery") on December 19, 1991, he sustained an injury by accident, or in the alternative, a compensable occupational disease caused by frostbite which resulted in gangrene of his right foot and subsequent amputation of his right great toe and second toe.
McCoy testified that approximately one week before Christmas 1991 he was exposed to very cold temperatures on his job as a landscaper. He claimed that his fingers turned red and then black and that his right foot was frozen solid. Contrary to McCoy's assertion in his opening brief, there is no evidence in the record that he sought medical care before January 4, 1992. He testified that after the job in mid-December his foot did not bother him a great deal, but, on the night of January 3, 1992, it became more painful and he went to the emergency room of Commonwealth Hospital.
The Kaiser Permanente medical records beginning on January 4, 1992 and up until February 12, 1992 make no mention of any history of exposure to cold temperatures or water, nor do they mention frostbite. Additionally, McCoy testified that he never gave a history of frostbite to his physicians. Drs. Nguyen, Bruce, Misersky and Walters of Kaiser Permanente all diagnosed McCoy as suffering from gout. In Dr. Nguyen's record dated January 6, 1992, he noted that McCoy's pain was completely relieved by colchicine, a medicine used to treat gout, but he discontinued its use due to diarrhea. On February 7, 1992, Dr. Walters, a podiatrist, removed McCoy's right toenail because it had become infected. On February 10, 1992, McCoy's follow-up examination with Dr. Walters was satisfactory, but on February 12, 1992, Dr. Nguyen noted that the tip of McCoy's right great toe had started to turn black.
McCoy was then referred to a surgeon, Dr. Alberts. A February 12, 1992 consultation form from Dr. Nguyen to Dr. Alberts contains a question of a history of frostbite injury. However, Dr. Alberts states in his notes that there is "no true history of frostbite, but works outside landscaping." Dr. Alberts diagnosed right great toe dry gangrene to the nail bed. McCoy was then referred to Dr. Nonas, a vascular surgeon, who noted on February 13, 1992 that McCoy developed frostbite and gout ten weeks earlier. On March 11, 1992, Dr. Dewey amputated McCoy's right great and second toes. His postoperative diagnosis was gangrene of the tips of the first and second toes of the right foot. McCoy returned to his regular employment on June 2, 1992.
McCoy did not report an accident to his employer until February 1992. The Employer's First Report, filled out with the assistance of McCoy, reflects a date of accident of January 28, 1992. In his statement to the insurance carrier, McCoy provided a date of accident as sometime after the Christmas holidays during the first or second week of January 1992. The President of Azalea Nursery, Marcus Zettel, testified that sometime significantly before McCoy went into the hospital and before he missed work he mentioned to Zettel that he had gout.
Injury by Accident
On appellate review, we will 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). "In order to carry his burden of proving an 'injury by accident,' a claimant must prove the cause of his injury was anidentifiable incident or sudden precipitating event and that it resulted in an obvious sudden mechanical or structural change in the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis in original, citations omitted). Unless we can say as a matter of law that McCoy's evidence was sufficient to sustain this 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).
The commission found that McCoy had not suffered an injury by accident occurring at a reasonably specific time and place. Credible evidence supports this finding. At best, the testimony and medical records document increasing right foot pain of at least two weeks duration prior to McCoy's first visit to Kaiser Permanente on January 4, 1992. They do not document a sudden mechanical or structural change in McCoy's body nor do they document a specific incident or precipitating event. Moreover, there is no evidence of McCoy giving his medical providers any history of exposure to cold temperatures or water. McCoy did not provide a consistent date or time period for his asserted accident. Finally, the commission correctly found that the evidence failed to prove the requisite causal connection. There is no history of frostbite nor any evidence to link McCoy's gangrene, which began in February 1992, to any cold exposure which allegedly occurred in mid-December 1991. Accordingly, we cannot say as a matter of law that McCoy's evidence was sufficient to meet his burden of proving an injury by accident.
Occupational Disease
McCoy's evidence with regard to a compensable occupational disease is equally insufficient. The commission found that McCoy was required to prove a compensable ordinary disease of life pursuant to Code § 65.2-401, but that he failed to do so because he did not prove a causal connection between his condition and the conditions of his employment. We agree.
"A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). On appeal, we will uphold the findings of fact made by the commission if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Moreover, "[t]he 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 v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989) (citing Code § 65.1-98).
McCoy relied exclusively on the reports and opinions of Dr. Nonas. However, the commission was entitled to accept the contrary opinions of Drs. Nguyen, Bruce, Walters, Misersky, Reid and Christie, which support its finding that McCoy failed to prove causation.
McCoy continually asserts in his opening brief that his initial physicians at Kaiser Permanente misdiagnosed and misdocumented his condition and that they later admitted their errors. This is incorrect. Dr. Nonas is the only physician to state that the other doctors were incorrect in their diagnosis and documentation. This was merely his opinion, unsubstantiated by any admission from the other physicians.
As the commission aptly noted, "any injury to claimant's foot resulting from cold exposure in mid December 1991 should have manifested itself before February 4, 1992 and been apparent at the time medical treatment commenced on January 4, 1992." Neither McCoy's testimony nor the medical records prove by clear and convincing evidence that McCoy's alleged frostbite was causally connected to his employment. Dr. Nonas' opinion was properly discounted in that he did not see McCoy until approximately ten weeks after the alleged exposure to cold. Yet, he concluded that McCoy developed frostbite and gout in December 1991, which in February 1992 resulted in gangrene and subsequent amputation without any medical evidence of a history of frostbite.
For the reasons stated, the commission's decision is affirmed.
Affirmed.