Carrington v. Aquatic Co. , 829 S.E.2d 530 ( 2019 )

Present: All the Justices
MARSHELLO CARRINGTON, ADMINISTRATOR
OF THE ESTATE OF CARNELL CARRINGTON
OPINION BY
v. Record No. 180243 JUSTICE D. ARTHUR KELSEY
JULY 18, 2019
AQUATIC COMPANY, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
In this case, the Court of Appeals affirmed a determination by the Workers’
Compensation Commission that Carnell Carrington was not entitled to temporary benefits for a
total disability caused by kidney failure unrelated to his employment. Agreeing with the
Commission and the Court of Appeals, we affirm.
I.
The Commission’s determinations of fact are conclusive and binding on appeal, and thus,
we “construe the evidence in the light most favorable to the prevailing part[y] before the
Commission,” Jeffreys v. Uninsured Emp’r’s Fund, 297 Va. 82, 87 (2019), which, in this case,
was Carrington’s former employer, Aquatic Company (“Aquatic”).
So viewed, the evidence showed that Carrington had begun working for Aquatic in 1992.
At that time, he had a preexisting kidney disease that “was not disabling” and “did not inhibit”
his ability to perform his job. J.A. at 358. For many years thereafter, the disease required
routine medical care but still did not affect his ability to work. In 2006, Carrington received a
kidney transplant. After a period of recuperation, Carrington returned to work without any
restrictions. In 2013, Carrington injured his left arm at work. The Commission awarded him
medical benefits and temporary total-disability benefits for his arm injury. After surgery and a
period of recuperation, Carrington was cleared by his doctors to return to light-duty work in
November 2013. At that time, Aquatic had full-time, light-duty work available for Carrington at
his regular wages.
Carrington returned to work in this light-duty capacity until October 2014, when his
kidney condition deteriorated severely. His doctors concluded that this new condition rendered
him totally disabled from performing any work. After receiving this diagnosis, Carrington
sought an award of continuing temporary total-disability benefits. Carrington and Aquatic
stipulated to the essential facts: Carrington had been “unable to work” since October 2014 “due
to polycystic kidney disease”; he had been “partially disabled” due to his earlier work-related
arm injury; and, since October 2014, he could have been fully employed at Aquatic in a job
“commensurate with his work-related light duty restrictions.” Id. at 22. Carrington also
conceded that he had not been disabled from work due to his preexisting kidney disease prior to
October 2014. See id. at 45. Carrington agreed that it was then that the disease “manifested
itself” as a disabling condition. See id.
The Commission held that Carrington was not entitled to continuing temporary total-
disability benefits. It concluded that neither Carrington’s preexisting kidney disease nor his
kidney failure in October 2014 had any connection to his employment. In addition, the
Commission concluded that Carrington’s arm injury was connected to his employment, but it did
not render him totally disabled as evidenced by the fact that after his arm surgery, Carrington
was able to return to light-duty work at Aquatic. The sole cause of Carrington’s total disability,
the Commission concluded, was his kidney failure that was unrelated to his employment.
2
“Consequently, the suspension mandated by Va. Code § 65.2-510 would be triggered,” 1 the
Commission ruled. J.A. at 359.
In an unpublished opinion, the Court of Appeals affirmed the Commission’s
determination. See Carrington v. Aquatic Co., Record No. 0628-17-2, 2018 WL 502777 (Va. Ct.
App. Jan. 23, 2018). Carrington passed away in 2018, and his Estate substituted itself as the
Appellant before this Court.
II.
On appeal, the Estate offers no contest to the Commission’s finding that Carrington’s
kidney failure was not work-related, and thus, that the kidney failure alone could not result in an
award of total-disability benefits. The Estate argues, however, that the two-causes rule applies to
the facts of this case. See Appellant’s Br. at 9-10. This rule applies when “a disability has two
causes: one related to the employment and one unrelated,” and thus, “[w]hen it is proven that the
employment is a contributing factor to the disability, full benefits will be allowed.” Bergmann v.
L & W Drywall, 222 Va. 30, 32 (1981) (per curiam); see also Lawrence J. Pascal, Virginia
Workers’ Compensation Law and Practice § 4.02[1][l], at 4-39 to -40 (4th ed. 2011). Like the
Commission and the Court of Appeals, we find the two-causes rule inapplicable here.
The two-causes rule articulated in Bergmann presupposes that the two causes (one
compensable and the other not) combine to produce the same disabling condition and that the
compensable cause arising out of “the employment is a contributing factor to the disability.”
1
Code § 65.2-510(A) states: “If an injured employee refuses employment procured for
him suitable to his capacity, he shall only be entitled to the benefits provided for in §§ 65.2-503
[for permanent loss] and 65.2-603 [requiring the employer to furnish certain medical attention],
excluding vocational rehabilitation services provided for in subdivision A 3 of § 65.2-603,
during the continuance of such refusal, unless in the opinion of the Commission such refusal was
justified.”
3
Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28-29 (1982) (emphasis in original) (quoting
Bergmann, 222 Va. at 32). In Bergmann, for example, medical evidence showed that a worker
“suffered from a neurological disability caused by both his [work-related] injury and the non-
job-related illness.” 222 Va. at 32. Similarly, in Smith, a worker was totally disabled by a
“respiratory ailment” caused in part by smoking and in “significant” part by the hazardous
ambient conditions of her employment. 224 Va. at 25-27. In both of these cases, we applied the
two-causes rule because there were two causes of the same disabling condition.
The two-causes rule does not apply to cases involving two causes that result in dissimilar
disabilities, as was the case here, when a partial disability caused by a work-related arm injury
(resolved by the availability of suitable, light-duty employment) was followed by a total
disability caused by non-work-related kidney failure. In American Furniture Co. v. Doane, we
explained:
[E]mployment “suitable to the employee’s capacity” means
employment within the employee’s residual capacity resulting
from the industrial accident. The [Workers’ Compensation] Act is
based upon the premise that an employer is liable for the condition
of an employee resulting from an industrial accident. But an
employer is not liable for conditions not causally related to the
employee’s work.
230 Va. 39, 42-43 (1985) (alteration omitted). See generally Pascal, supra, § 6.03[2], at 6-23
(4th ed. 2011 & Supp. 2018). “An employer, therefore, is absolved of liability for compensation
if the employee refuses selective employment because of a physical condition unrelated to the
original industrial accident and arising since the accident.” Doane, 230 Va. at 43. 2
2
In this respect, Doane is not truly an exception to the two-causes rule, as the Court of
Appeals and the Estate suggest, see Carrington, 2018 WL 502777, at *3; Appellant’s Br. at 10-
12, 14, 19. Doane instead simply points out that the two-causes rule is inapplicable when only
one cause is to blame for the claimant’s total disability.
4
In its unpublished opinion in the present case, the Court of Appeals faithfully followed
our precedent on this issue:
When a non-work-related disability prevents a partially disabled
employee from returning to his or her pre-injury work or from
accepting selective employment, for purposes of the Workers’
Compensation Act, the unrelated disability is not justification for
the employee to refuse or not to perform selective employment.
Thus, the inability of a disabled employee to do selective work due
to an unrelated disability is equivalent to an unjustified refusal of
selective employment.
Carrington, 2018 WL 502777, at *3-4 (alterations and citation omitted). This principle has long
been understood and followed by the Court of Appeals:
The rationale behind this principle is that when an employee’s
work-related disability has resolved itself to the point that the
worker can return to gainful employment, he or she is required to
do so. An employer is not responsible for a disabled employee
who is no longer unable to return to gainful employment because
of his or her work-related injuries, but is prevented from doing so
for other reasons.
Eppling v. Schultz Dining Programs, 18 Va. App. 125, 130 (1994).
The Estate acknowledges this principle but slightly modifies it in an analytically
significant manner. “[T]here are two causes of Mr. Carrington’s disability,” the Estate reasons:
“partial disability attributable to a work-related left arm injury and total disability attributable to
pre-existing polycystic kidney disease. Both conditions prevented Mr. Carrington from returning
to his pre-injury duties.” Appellant’s Br. at 10. The flaw in this logic is in its conclusion.
It does not matter that either or both of Carrington’s ailments kept him “from returning to
his pre-injury duties,” id. What matters is whether either injury (and, if so, which one) kept him
from working at all — thus rendering him totally disabled. The undisputed facts resolve this
question. Carrington’s work-related arm injury did not prevent him from returning to full-time
work, albeit in a less physically demanding job. Carrington’s non-work-related kidney failure,
5
however, rendered him unable to perform any job. Thus, the two-causes rule does not govern
this case because there was only one cause of Carrington’s total disability: his non-work-related
kidney failure.
Underneath the veneer of the Estate’s argument is the premise that Aquatic should
somehow be estopped from treating Carrington’s kidney failure as a non-compensable cause
because Aquatic hired him knowing that he had a preexisting kidney disease. That argument
might be fair if Carrington’s preexisting condition had partially disabled him at the outset of his
employment with Aquatic and then his later work-related arm injury deprived him of any
remaining capacity to work at all. Such a scenario would be akin to the egg-shell-skull doctrine
recognized in both tort law 3 and in workers’ compensation law. 4 But that is not the scenario in
this case. As the Commission pointed out, Carrington “had no pre-accident restrictions
associated with his longstanding kidney condition” during his many years of employment with
Aquatic. J.A. at 360; see also id. at 45.
Workers’ compensation law distinguishes between preexisting conditions that are solely
responsible for a total disability and preexisting conditions that combine with a work-related
injury to create a total disability. To police the boundaries of this doctrine,
3
See, e.g., Bradner v. Mitchell, 234 Va. 483, 489 (1987); State Farm Mut. Auto. Ins. v.
Futrell, 209 Va. 266, 271 (1968); Ragsdale v. Jones, 202 Va. 278, 282-83 (1960); Virginia Ry. &
Power Co. v. Hubbard, 120 Va. 664, 668-69 (1917). See generally Charles E. Friend, Personal
Injury Law in Virginia § 13.3.6, at 318 (3d ed. 2003); 13 Peter Nash Swisher et al., Virginia
Practice Series: Tort and Personal Injury Law § 3:31, at 111-12 (2018-2019 ed.).
4
See, e.g., Combs v. Virginia Elec. & Power Co., 259 Va. 503, 511 (2000) (finding that
the aggravation of a claimant’s preexisting condition arose out of her employment because the
preexisting condition “united with an actual risk of her employment to produce her injury”);
Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58 (1985) (“When an injury sustained in an
industrial accident accelerates or aggravates a pre-existing condition, death or disability resulting
therefrom is compensable under the Workers’ Compensation Act.”). See generally Pascal,
supra, § 4.02[4][a], at 4-69 to -70 (4th ed. 2011 & Supp. 2018).
6
[t]here must be distinguished the situation in which the employee’s
story begins with a preexisting condition, encounters next a
compensable injury, followed by deterioration or collapse. If this
further progression stems from the compensable injury rather than
from the preexisting condition, it will be compensable. But if the
deterioration is merely a resumption of the progression of the
condition predating the industrial injury, further damage is not
compensable.
3 Arthur Larson et al., Larson’s Workers’ Compensation Law § 46.03[8], at 46-21 (2019)
(footnote omitted). 5 Failing to distinguish between these differing scenarios would convert the
Workers’ Compensation Act “into a form of health insurance,” Doane, 230 Va. at 42, and, as the
Commission noted in its opinion, would encourage “the potential mischief of affording a license
to refuse otherwise appropriate light duty work because a pre-existing benign, asymptomatic
condition eventually deteriorates to the point of causing restrictions,” J.A. at 360 n.4.
III.
Because the two-causes rule does not apply to this case, we affirm the judgment of the
Court of Appeals.
Affirmed.
5
In accordance with this doctrine, “an injury due to the natural progress of the disease
itself will not warrant a finding that the injuries were due to an accident.” Liberty Mut. Ins. v.
Money, 174 Va. 50, 55-56 (1939) (citation omitted); see also Christy v. Mercury Cas. Co., 283
Va. 542, 547 (2012) (“However, if an employee suffers from a pre-existing condition at the time
of the covered accident, compensation will only be payable for expenses incurred if the accident
‘accelerates or aggravates the pre-existing condition.’” (alteration and citation omitted)); cf.
Fairfax Cty. Sch. Bd. v. Martin-Elberhi, 55 Va. App. 543, 545-46 (2010) (holding that an
“employee can recover for the degree of impairment caused by the aggravation but not for any
preexisting impairment unrelated to the work-related accident”). See generally Pascal, supra,
§§ 4.02[4][a], 5.07, at 4-69 to -70, 5-16 to -17 (4th ed. 2011 & Supp. 2018); 15 Virginia Practice
Series: Workers’ Compensation § 6:5, at 48-49 (2018 ed.).
7