Opinion
Record No. 0389-92-2
January 5, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
J. Mark DeBord (Hunton Williams, on briefs), for appellant.
Thamer E. Temple, III (Jack W. Burtch, Jr., McSweeney, Burtch Crump, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The sole question presented on this appeal is whether credible evidence supports the commission's decision that Philip Morris Incorporated did not prove by a preponderance of evidence a change in condition. Viewing the evidence in the light most favorable to the party that prevailed before the commission,Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986), we conclude that the commission's factual findings are supported by credible evidence, and we affirm the decision.
Mark A. Brent was employed by Philip Morris to perform, as needed, various tasks throughout a manufacturing plant. He suffered a compensable back injury at work in 1986. In September 1988, Brent sustained an injury to his lower back when a barrel struck an electrical lift and caused Brent to be thrown back and forth against safety rails on the lift.
Dr. McGowan, a physician employed by Philip Morris, initially treated Brent. He reported that Brent was evaluated for "lower back pain which has occurred off and on since 1986" and that "[s]ix days ago [Brent] aggravated his back pain at work." In the report, Dr. McGowan diagnosed Brent's injury as chronic lumbosacral strain. Brent was treated by Dr. McGowan through December 1988 and given various medication.
In January 1989, Brent began receiving treatment from Dr. Barry Burkhardt, a orthopaedist. Dr. Burkhardt noted a history of injury in 1986 and 1988 and prescribed therapy for chronic lower back pain. In September, 1989, Dr. Burkhardt ordered an MRI. The MRI showed a slight bulging disc at L5-S1.
Beginning June 20, 1989, Brent underwent treatment by Dr. William D. Henceroth, an orthopaedist and the treating physician in this case. Dr. Henceroth initially diagnosed symptoms of "chronic pain over the right sacroiliac with some sacroiliac disfunction." Following Dr. Henceroth's diagnosis and while Brent was under his care, Philip Morris and Brent entered into a memorandum of agreement for compensation payable from September 25, 1989, for "lumbar strain." An award was entered.
During the time Brent was being treated by Dr. Henceroth, he went to see Dr. Bame, a chiropractor. Dr. Henceroth approved the treatment given Brent by Dr. Bame from July 19, 1990, until October 1, 1990, for therapy and treatment of Brent's chronic lumbar strain. Dr. Bame's diagnosis indicated the presence of musculoskeletal pathology and pain from lumbosacral strain consistent with the injuries Brent described to him. Brent indicated to Dr. Henceroth that Dr. Bame's treatment was relieving some of his pain.
In August 1990, Philip Morris and Brent entered into a supplemental agreement continuing compensation during incapacity. Another award was entered. On October 11, 1990, Dr. Henceroth ordered Brent to discontinue Dr. Bame's treatment because Dr. Henceroth did not notice improvement. Dr. Henceroth later diagnosed Brent as having "some kind of underlying spondylitic arthropathy," a rheumatic disorder. He stated that Brent "has some underlying constitutional problem . . . unrelated to any injury he sustained at work."
In March, 1990, Brent was referred to Dr. C. Kent Titus, a rheumatologist. Based upon his examination and the treatment, Dr. Titus opined: "I doubt that the primary problem is ankylosing spondylitis." Later, in November 1990, Dr. Titus again reviewed Brent's course of treatment and history of complaints and opined:
In view of the negative bone scan, the absence of radio-graphic changes for spondylitis, the lack of response to Indocin and the absence of morning stiffness; it seems to me that the patient's condition is more consistent with muscle strain rather than inflammatory state.
In February 1991, Dr. Henceroth agreed in part with Dr. Titus. He stated: "I do not feel he has ankylosing spondylitis but I think he has spondylitic symptoms and a more subtle type of spondylitis of his back."
On February 25, 1991, Brent went to Dr. Anthony Velo, who diagnosed a herniated disc. On March 4, 1991, Dr. Velo operated on Brent, and stated that the herniated disc resulted from the September 1988 injury. Following the operation, Dr. Henceroth reviewed Dr. Velo's records and stated his opinion that Brent did not sustain a herniated disc as a result of his September 1988 injury and that the surgery was unrelated to Brent's workplace injury.
Based upon Dr. Henceroth's reports, Philip Morris filed an application in November 1990 to terminate Brent's benefits. The Deputy Commissioner rejected Dr. Velo's findings and, instead, relied on Dr. Henceroth's opinion to find that Brent's condition had changed and no longer was related to his compensable injuries. Furthermore, the deputy commissioner found that because the herniated disc was not causally related to the industrial accident, Philip Morris was not responsible for the treatment rendered by Dr. Velo, including his L5-S1 disc surgery. The full commission affirmed the deputy commissioner's finding concerning Dr. Velo's treatment but reversed the deputy commissioner's finding concerning Brent's lumbar strain. The commission held that the medical evidence failed to establish that Brent's compensable injuries were not a contributing factor to his disability.
"General principles of work[ers'] 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 [the] allegations 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) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Thus, Philip Morris had the burden of proving Brent's change in condition. We are bound by the statutory rule that the commission's findings of fact must be sustained on appeal when they are supported by credible evidence. Code § 65.2-706; Crisp, 1 Va. App. at 504, 339 S.E.2d at 916. Furthermore, we are guided by the principle that "[t]he fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's findings." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). The record in this case is replete with credible evidence supporting the commission's findings.
Dr. McGowan diagnosed a chronic lumbosacral strain on September 21, 1988. Dr. Burkhardt, an orthopaedic surgeon, began prescribing therapy for a low back strain in January 1989. Dr. Bame, a chiropractor, noted that Brent had a lumbar strain, and in his narrative report of September 12, 1990, he explained the treatments rendered and the improvements made in Brent's condition. Dr. Titus, a rheumatologist, concluded in a report of November 26, 1990, that Brent's condition was consistent with muscle strain rather than ankylosing spondylitis. On the other hand, Dr. Henceroth, an orthopaedist, initially diagnosed "chronic pain over the right sacroiliac with some sacroiliac disfunction" but concluded in 1989 that Brent did not need further treatment. However, when Brent continued to experience pain, Dr. Henceroth authorized chiropractic treatment.
Philip Morris contends that Dr. Henceroth's diagnosis shows that Dr. Henceroth believed Brent's 1990 disability was unrelated to any injury he sustained at work. Specifically, Philip Morris refers to two letters from Dr. Henceroth, dated October 18, 1990 and February 4, 1991. These letters were part of the record and they were quoted in both the deputy commissioner's decision and in Philip Morris' brief to the full commission.
The full commission considered the entire record, including Dr. Henceroth's several medical opinions. The commission specifically noted Dr. Henceroth's belief that Brent "had some kind of underlying spondylitic arthropathy." However, the commission stated:
[T]he fact that the claimant may have other disabling conditions is not a sufficient basis for terminating his compensation for work incapacity. The issue involved is whether the claimant's lumbosacral strain as diagnosed by all of the treating physicians is still a contributing cause of his work incapacity.
The commission found no medical evidence in the record to support a finding that Brent's lumbosacral strain, which was documented by Dr. McGowan, Dr. Bame, Dr. Titus, Dr. Burkhardt, and initially by Dr. Henceroth, was no longer contributing to his work incapacity. Consequently, the commission concluded that Philip Morris had not carried its burden of proving that Brent's industrial injury was no longer contributing to his disability.
It is clear that the commission concluded from its review of the medical evidence that Brent's condition was a "lumbosacral strain" and rejected Dr. Henceroth's conclusion that Brent's continuing difficulty was due to a "subtle type of spondylitis of his back." The record clearly proved that Dr. Henceroth agreed with Dr. Titus' diagnosis that Brent did not have ankylosing spondylitis. Dr. Henceroth then concluded that Brent had spondylitic "symptoms" and some unspecified "underlying constitutional problem." The findings of all the doctors, including Dr. Henceroth's initial findings, diagnosed lumbosacral strain. The commission's finding that "the fact that [Brent] may have other disabling conditions is not a sufficient basis for terminating [Brent's] compensation for work incapacity" implicitly rejected Dr. Henceroth's more recent diagnosis of a "subtle type of spondylitis" as the sole cause of Brent's difficulties.
Although an attending physician's opinion generally is to be given great weight, "'when it appears . . . that the diagnosis is shaded by doubt, and there is medical expert opinion contrary to the opinion of the attending physician, then the trier of fact is left free to adopt that view which is most consistent with reason and justice.'" Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (quoting Bristol Builders' Supply Co. v. McReynolds, 157 Va. 468, 471, 162 S.E. 8, 9 (1932)). Given the initial agreement but later apparent conflict between Dr. Henceroth's opinion and the other medical expert opinions, it was for the commission "to determine the probative weight to be accorded such evidence." Id. Having resolved in favor of Brent the conflict in evidence whether Brent's disability was related to his 1988 injury, the finding by the commission is based on credible evidence and is binding on this Court. Id. "A finding based upon conflicting expert medical opinions is one of fact which cannot be disturbed." Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985). Accordingly, we affirm the decision of the commission.
Affirmed.