Opinion
Record No. 2326-92-2
March 30, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Edmund R. Michie; Michie, Hamlett, Lowry, Rasmussen Tweel, on brief), for appellant. Appellant submitting on brief.
(Thomas H. Miller; Melissa Warner Scoggins; Gentry, Locke, Rakes Moore, on brief), for appellee Transportation Insurance Company. Appellee submitting on brief.
No brief for appellees The Kroger Company or Associated Indemnity Corporation.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Isaac E. Simmons, Jr. appeals from a decision of the Workers' Compensation Commission wherein the commission found that Simmons did not sustain a new injury by accident to his back on December 19, 1990. Rather, the commission found that Simmons' current back condition was the result of a progressive deterioration of a L5-S1 disc injury he sustained in the course of his employment at Kroger in 1982. As a result of these findings, Simmons was awarded reimbursement for ongoing medical treatment to his back against Associated Indemnity Company ("Fireman's Fund"), Kroger's insurer in 1982, but was denied wage indemnity benefits which the commission held were barred under the applicable statute of limitations contained in Code § 65.2-708 (formerly Code § 65.1-99). Simmons' July 1, 1991 application against Transportation Insurance Company (CIGNA), Kroger's insurer in December 1990, was dismissed without entry of an award. We find no error and affirm the judgment of the commission.
Pursuant to an award of the Workers' Compensation Commission entered on June 16, 1982, Simmons was paid compensation benefits by Fireman's Fund for temporary total disability from March 20, 1982 through May 16, 1982, as a result of the 1982 incident. Accordingly, Simmons' claim for a change in condition was barred by the statute of limitations contained in Code § 65.2-708 (formerly Code § 65.1-99), because it was filed more than twenty-four months from the last day for which compensation was paid.
Simmons, who has been employed by Kroger since 1976, testified that, in 1982, he sustained a compensable back injury while lifting a pallet. He was treated by his family physician, Dr. Evans. Simmons returned to work about a month after the 1982 incident. However, from that time until 1987, he continued to have problems with his back. In 1987, after receiving no advice from management with regard to his back condition, Simmons began treatment with Dr. Galen Craun. A CT scan performed by Dr. Craun in April 1987 revealed a slight disc herniation at the L5-S1 level with slight degeneration. Simmons testified that Dr. Craun told him in 1987 that he had a very bad back which was only going to get worse and that he would need surgery at some point in the future.
On December 19, 1990, Simmons and co-worker, Joey Pratt, were processing five pallets of Kroger merchandise when Simmons felt a sudden pain in his left side as he lifted a case containing twelve, thirty-two ounce jars of corn syrup. Simmons admitted that the pain he felt was in his groin area, more focused on the left abdomen than the left side. He stated that this pain was new to him. His back was also aching. He admitted that his back normally hurt at work, but claimed that this incident magnified his back pain. Simmons sustained a hernia as a result of the December 1990 incident. The injury was accepted as compensable by CIGNA.
Daren Parnham, the co-manager of the Kroger store located in Harrisonburg, testified that after Simmons' December 19, 1990 accident, Parnham completed an Employee Accident Report from the verbatim answers given to him by Simmons. Parnham unequivocally stated that Simmons did not complain of any back pain to him when questioned about the injury and the body parts that had been affected. Parnham stated that Simmons told him that he felt pain only in the groin area. Parnham was aware of Simmons' previous back injury as he had observed Simmons grimace at work when they were putting up groceries. Parnham did not fill out any other forms with regard to Simmons' December 1990 accident. In rebuttal, Simmons testified that he believed he went back to the store a few days later and told Parnham or a Mr. Snyder that he had also hurt his back in the incident.
On appellate review, we construe the evidence in the light most favorable to the party prevailing before the commission. 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). Unless we can say, as a matter of law, that Simmons' evidence was sufficient to meet his burden of proof, 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).
In finding that Simmons did not sustain a new injury by accident to his back on December 19, 1990, the commission relied on the January 25, 1990 letter of Dr. Craun. This letter, along with the other medical reports of Dr. Craun and the testimony of Simmons and Parnham, provide credible evidence to support the commission's finding that Simmons' progressively deteriorating back condition was related to his initial injury sustained in 1982, and that he failed to prove that he incurred a new injury by accident on December 19, 1990.
In his January 25, 1990 letter to Kroger, Dr. Craun unequivocally stated, eleven months prior to the December 1990 incident, that Simmons' lower back condition stemmed from his work-related injury sustained in 1982 and was becoming progressively worse. At that time, Dr. Craun recommended that Simmons be evaluated by Dr. Whitehill for consideration of lumbar fusion surgery.
On March 5, 1992, in response to written questions posed to him by counsel for Fireman's Fund, Dr. Craun stated that the acute back symptoms which Simmons reported after the December 1990 incident were no more than an aggravation of his chronic, incapacitating problem involving the degenerated L5-S1 disc. Dr. Craun stated that Simmons' current back condition was related to his earlier injuries of 1980 and 1982 and was merely aggravated by the lifting incident in 1990.
On March 11, 1992, in response to written questions posed to him by counsel for CIGNA, Dr. Craun stated that Simmons' current back condition, which necessitated surgery in April 1991, naturally flowed from the progressive deterioration of his L5-S1 disc space since the initial injury of 1980. Dr. Craun agreed that Simmons' disc disease was aggravated by his repetitive and continual heavy lifting over many years. In response to a question specifically addressing whether Simmons sustained a sudden mechanical change in his back, Dr. Craun stated that the injury of December 1990 was merely an aggravation of Simmons' chronic back condition related torepetitive lifting.
Medical evidence provided by Dr. Craun supports a finding that Simmons did not sustain an injury to his back within the meaning of Morris v. Morris, 238 Va. 578, 598, 385 S.E.2d 858, 865 (1989), but rather that his back condition flowed naturally from the progression, deterioration or aggravation of his back problems of 1980 and 1982. Thus, credible evidence supports a finding that Simmons' back problems were the result of a change in condition, not the result of a new and separate accident.See also Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99 (1977). Additionally, Simmons' testimony that he felt pain only in his groin area at the time of the lifting incident and his lack of complaints regarding his back at the time of reporting the incident, offer further support for the commission's finding that Simmons failed to prove that he sustained a sudden or specific change in the bodily structures of his back.
Accordingly, we affirm the commission's finding that the evidence failed to establish that Simmons sustained a separate back injury attributable to the industrial accident of December 19, 1990.
Affirmed.