Opinion
Record No. 2246-92-4
April 6, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Lynne J. Fiscella, on brief), for appellants. Appellants submitting on brief.
(Craig A. Brown; Ashcraft Gerel, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Shirley Contracting Corporation and its insurer (collectively referred to as "Shirley Contracting") appeal from a decision of the Workers' Compensation Commission, reversing the opinion of the deputy commissioner, and awarding benefits to Keith Davis for a change in condition sustained while working for Shirley Contracting on November 5, 1991. Shirley Contracting contends that the commission erred in finding that the evidence supported a change in condition rather than a new injury. In addition, Shirley Contracting asserts that the commission erred in finding that Davis met his burden of proving disability from November 5, 1991 forward. Finally, Shirley Contracting contends that the full commission did not have authority to address the issue of disability because that issue was not raised by Davis on appeal or addressed by the deputy commissioner.
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). "The Commission's finding of fact that . . . [a second] injury was not a new accident is binding on appeal if supported by credible evidence." Board of Supervisors v. Martin, 3 Va. App. 139, 142, 348 S.E.2d 540, 541 (1986). Moreover, an employer remain[s] "liable to the employee for compensation even though he was injured in [an] intervening . . . accident. An employee is entitled to continued compensation, in spite of an intervening accident, if the intervening accident exacerbates the original injury." Green v. Warwick Plumbing Heating Corp., 5 Va. App. 409, 411, 364 S.E.2d 4, 6 (1988) (citingFairfax Hosp. v. DeLaFleur, 221 Va. 406, 409, 270 S.E.2d 720, 722 (1980)).
Davis testified that he originally injured his lower back on October 4, 1990 while operating a crane at work. The employer accepted this injury as compensable. Even though he returned to light duty work on September 23, 1991, Davis testified that, from the time he injured his back until the time of his accident on November 5, 1991, he had severe pain in his legs, back, hips, groin area and toes. The medical records show that, on October 1, 1991 and October 24, 1991, Davis was treated by Dr. Mayo Friedlis and was still having considerable problems with his lower back. In fact, on October 24, 1991, Dr. Friedlis increased Davis' medication and gave him a back brace to wear.
On November 5, 1991, Davis was involved in an automobile accident. He was stopped in the company pick-up truck and was hit from behind. He described the impact as "slight" and damage to the truck was minimal. He did not feel any pain upon impact. Rather, as he turned around to see what had happened, he felt a sharp pain in his lower back and legs. At the time, Davis was wearing the back brace given to him by Dr. Friedlis. Davis' pain was in the same parts of his body as the pain he felt after his original injury on October 4, 1990.
On November 5, 1991, Davis went to the Mary Washington Hospital Emergency Department. The history he gave to the personnel at the emergency department was consistent with his testimony at the hearing. He was diagnosed as suffering from an acute exacerbation of his October 4, 1990 back injury. He was instructed to stay out of work for a week. On November 11, 1991, Davis returned to his treating physician, Dr. Friedlis. The history of the November 5, 1991 accident which Davis gave to Dr. Friedlis was consistent with his testimony. Dr. Friedlis stated in his office notes that Davis had sustained an exacerbation which disabled him from work. On December 17, 1991, according to Dr. Friedlis' office notes, Davis' condition was unchanged. On February 19, 1992, Dr. Friedlis noted continuing substantial back pain and that Davis had twisted in the bathtub and aggravated his condition. Dr. Friedlis noted that Davis had not undergone the physical therapy he had recommended because the carrier had not approved it. This medical report is the last one in the record from Davis' treating physician.
As summarized above, there is credible evidence to support the commission's finding that Davis' original back injury was exacerbated at the time he turned around in his vehicle on November 5, 1991. Davis' testimony, along with the medical records, substantiate a finding of an exacerbation rather than a new injury. Thus, Green and DeLaFleur are controlling. Accordingly, the commission's finding that Davis proved he sustained a change in condition will not be disturbed on appeal.
Furthermore, credible evidence supports the commission's finding of continuing disability beginning November 5, 1991. The Mary Washington Hospital Emergency Department records state that Davis was to remain out of work on bed rest for a week. Thereafter, Dr. Friedlis excused Davis from work beginning on November 11, 1991. On December 17, 1991, Dr. Friedlis noted that Davis' condition was unchanged. On February 19, 1992, Dr. Friedlis noted that Davis was still suffering from substantial back pain. There is no evidence in the record that Dr. Friedlis ever released Davis to return to full duty. Thus, the medical evidence provides support for the commission's finding of continuing disability.
Since the record was complete, the full commission was entitled to consider the issue of disability even though the deputy commissioner did not do so. The very nature of the deputy commissioner's rulings made it unnecessary for the deputy commissioner to address the disability issue, yet necessary for the full commission to do so.
For the reasons stated, we affirm the commission's decision.
Affirmed.