Opinion
Record No. 1556-94-2
Decided: April 18, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Louis D. Snesil (Geoffrey R. McDonald; Laura L. Geller; McDonald Snesil, P.C., on brief), for appellant.
P. Dawn Bishop (Sands, Anderson, Marks Miller, on brief), for appellees.
Present: Judge Benton, Senior Judges Cole and Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The appellant, Charles Wilson, raises two issues in this appeal: 1) whether any credible evidence supports the commission's finding of a lack of causal connection between the claimant's compensable injury of August 22, 1991, and disability and medical treatment after August 26, 1991; and 2) whether any credible evidence supports the commission's finding that the incident of October 27, 1992, was not a compensable consequence or change of condition related to the claimant's August 22, 1991 accident. Finding credible evidence in the record to support the findings of the commission, we affirm.
On appellate review, 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). Factual findings made by the commission will be upheld when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "The 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 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, 187 (1989). Unless we can say as a matter of law that claimant's evidence was sufficient to sustain his burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). The trier of fact must determine the weight of the testimony and the credibility of the witnesses, but it may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with facts in the record. Hankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985).
Since the parties are familiar with the facts and circumstances of the case, we will not undertake to review them in detail. We will only set forth the facts that are necessary to explain our decision.
Claimant contends that there is no credible evidence in the record to support the commission's finding of a lack of causal connection between his compensable injury of August 22, 1991, and disability and medical treatment after August 26, 1991. He asserts that the opinions of Dr. Harold Young and Dr. Charles Bonner provide ample evidence of causation and that the employer's evidence to the contrary is insufficient to support the commission's finding on causation.
Dr. Gary D. McGowan, Medical Director of the Emergency Department at Metropolitan Hospital, saw Wilson on the day of his accident in the emergency room. In his report dated February 26, 1993, Dr. McGowan stated.
I feel that because of the fact that Mr. Wilson improved significantly in a two week period during my care and since there was such a long time span between his initial injury and the subsequent surgery that I am unable to connect these two events with any degree of certainty. I realize that you would like me to state that it is probable that these two events are related, but at this point knowing the fact that cervical disc disease can occur at any time in any person, I am only able to state that it is possible that these two events are connected.
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Of note is that during my visit with Mr. Wilson in October 1992, he stated that he had worked full duty from September 1991 to December 1991 with no significant problems that I am aware of.
Dr. Peter McAllister, who treated the claimant in the neurology clinic at MCV during the summer of 1992 and found the offending disc, opined that while the claimant's medical problems might be related to the compensable injury, there would be no certain way to determine this.
An independent examination was conducted by Dr. Herbert W. Parks on behalf of the employer, who reviewed Wilson's entire file to determine the relationship between the accident of August 22, 1991, and the disc surgery performed on October 15, 1992. Dr. Parks opined that "to a reasonable degree of medical certainty, . . . that event did not cause or provoke a ruptured intervertebral disc at the level of C5-C6, requiring surgery on 10/15/92."
There is further evidence in the record to be considered by the commission in determining causation. On cross-examination, Wilson testified that he returned to regular work on September 3, 1991, and had no problems when terminated on December 9, 1991. During this time, he did not return to see Dr. McGowan, nor did he tell Mr. Kennedy, his employer, of any physical problems.
While working, Wilson went to the MCV diabetes clinic as an out-patient. He made no complaints of pain while being treated there. He told personnel at the clinic that his work was going well. It was not until May 17, 1992, that Wilson first mentioned to clinic personnel that he was having problems with his legs and his coordination. He told them that all his problems seemed to have developed in the previous month. In July 1992, Wilson was referred to neurology at MCV, where he reported that he first experienced weakness in April 1992.
Upon our review, we find credible evidence in the record to support the finding of the commission that the claimant had not carried his burden to prove causation between the accident of August 22, 1991, and his disability and medical treatment after December 1991. The medical records consistently recite a history of leg pain and loss of coordination beginning in April 1992. There is credible evidence that the claimant was able to perform his janitorial duties until he was fired in December 1991, for cause, and that he did not seek medical treatment between August 30, 1991, and May 1992, except for diabetes.
The claimant further contends that the accident of October 27, 1992, was a compensable consequence or a change of condition related to the compensable accident of August 22, 1991 and that the commission erred in not so finding. The claimant argues that the compensable accident of August 22, 1991 was a contributory cause of the injury which occurred on October 27, 1992, because he tripped and fell because of the weakened condition he was in from the first accident. He further asserted that he did not have his collar on at the time because he had to clean it from time to time.
As we have already found, the evidence from Drs. McGowan, McAllister, Park, and others, support the commission's finding that claimant failed to prove a causal connection between the August 22, 1991, accident and his disability and medical treatment after December 1991. Claimant admitted that he did not seek medical treatment between August 30, 1991 and May 1992. With respect to the October 27, 1992, incident, the evidence does not support claimant's assertion that he tripped and fell as a result of his October 15, 1992 surgery. Dr. Young stated that his legs were not weak and he appeared fine when discharged. In addition, claimant intentionally removed his collar against medical orders for no plausible reason. This act constituted an independent intervening cause which severed any causal relationship between the October 15, 1992 disc surgery and the October 27, 1992 injuries. We find credible evidence in the record to support the commission's finding that the incident of October 27, 1992, was not a compensable consequence or a change of condition related to claimant's August 22, 1991 accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.
The attending physician, Dr. Harold Young, Chairman of the Neurosurgery Department at the Medical College of Virginia, opined that Wilson's condition resulted from the injury that he received at work on August 22, 1991. Dr. Young also stated that it was not unusual for a patient to be asymptomatic following such an injury. The long established " 'general rule is that when an attending physician is positive in his diagnosis . . ., great weight will be given by the courts to his opinion.' " Baltimore v. Benedict Coal Corp., 182 Va. 446, 453, 29 S.E.2d 234, 237-38 (1944) (citation omitted). Not only did the commission disregard Dr. Young's testimony without giving any explanation, it also ignored the same conclusion by Dr. Charles Bonner, who also examined Wilson.
In finding that the evidence did not preponderate in Wilson's favor, the majority of the commission relied upon an irrelevant statement regarding causation that was given by a hospital resident physician and upon a report by a doctor who never examined Wilson. Inexplicably, the commission gave significant weight to a statement in a letter from a resident, who Dr. Young supervised at the hospital, that Wilson's "medical problems may be related to his accident on 8/22/91, but there is no way to be certain of this." The resident's lack of certainty does not translate to a negation of causal connection. Noting that Dr. Young "sharply took issue with [the opinion] of his resident," the commission gave no reason for disregarding Dr. Young's positive assertion of causation in favor of the resident's inability to ascribe a degree of certainty to his own suspicion of causation. In view of the positive assertions of causation by Dr. Young and the physician who also examined Wilson, Dr. Bonner, any reliance on the resident's inability to know whether a causal connection existed between the incident and the injury was simply not credible.
Similarly, the commission's reliance on Dr. Park's report is inexplicable. Dr. Parks never examined Wilson; he merely read Wilson's medical history at the request of the employer before opining that Wilson's surgery was not related to the injury he suffered at work. Dr. Parks speculated that Wilson's surgery necessitated by "trauma of unknown type." The commission provides no basis for accepting Dr. Park's report and rejecting the opinions of the attending physician and Dr. Bonner, both of whom examined Wilson and made diagnoses that connected the injury to the work accident. Likewise, Dr. Gary McGowan's statement "that it is possible that these two events are connected" is not a statement that a causal connection is lacking. His statement only reflects a degree of uncertainty that must give way to the positive finding of Wilson's attending physician. "Facts prevail over possibilities." Ellis v. Commonwealth, 182 Va. 293, 305, 28 S.E.2d 730, 735 (1944).
The commission's finding that Wilson re-injured his neck while sleeping without his cervical collar is not supported by the record. Thus, I would also reverse its finding that Wilson's re-injury was the result of an independent intervening cause attributable to Wilson's misconduct.
For these reasons, I would reverse the commission's decision.