Marianne Francone v. Fairfax County Public Schools ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Haley
Argued at Fredericksburg, Virginia
UNPUBLISHED
MARIANNE FRANCONE
MEMORANDUM OPINION BY
v. Record No. 0357-17-4 JUDGE ROSSIE D. ALSTON, JR.
DECEMBER 19, 2017
FAIRFAX COUNTY PUBLIC SCHOOLS
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Kathleen Grace Walsh for appellant.
Michael N. Salveson (Charles F. Trowbridge; Littler Mendelson,
P.C., on brief), for appellee.
Marianne Francone (“appellant”) appeals the decision of the Workers’ Compensation
Commission (“Commission”), which denied her claim for coverage of a total left knee
replacement. Appellant asserts that the Commission erred in determining causation and in
declining to apply the two-causes rule. Upon review, we find that the Commission did not err
and affirm.
BACKGROUND
Appellant is a 49-year-old woman employed as a “crisis resource teacher” by Fairfax
County Public Schools (“appellee”). The record on appeal shows that appellant’s lengthy history
of left knee issues began as far back as 2008. At that time, she underwent arthroscopic surgery
to treat her developing arthritis. In 2011, appellant experienced more pain in her left knee that
was aggravated by walking, climbing stairs, and when engaging in rotating movements. She was
diagnosed with degenerative arthritis, and exhibited significant cartilage loss in her left knee. In

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
February 2012, a student kicked appellant in the left knee and she began seeing Dr. Peter Lavine,
who became her primary orthopedic physician. Dr. Lavine performed another arthroscopic
surgery on appellant’s left knee in April 2012. He informed her that a total knee replacement
had become an option, noting that “the only thing that is going to help [appellant’s condition]
would be a unicompartmental knee arthroplasty or total knee arthroplasty.” In December 2012,
Dr. Lavine wrote that appellant’s “options are limited,” and he listed non-operative treatment
consisting of cortisone injections, physical therapy, and prescription medications in lieu of a
knee replacement. In February 2013, despite ongoing physical therapy and prescription
medications, appellant reported that she was “unable to walk greater than 30 min[utes].”
In August 2013, Dr. Lavine again noted that appellant “has end stage Degenerative Joint
Disease . . . with eburnation down to bone” and that “options are either non-operative as she has
done, or arthroplasty . . . eventually she will end up here.” Appellant’s condition worsened in
September 2013 – she reported to Dr. Lavine that her knee was “catching, grinding, and giving
way” and that “she [had] to sit to dress, she [had] pain with ambulation, she [had] pain by the
end of the day, she [had] trouble getting off of the floor and pain going up and down stairs.” By
this point, Dr. Lavine concluded that “she [was] inching to the point where arthroplasty is
becoming her last option.”
In August 2014, appellant suffered the injury that is the basis of her claim. Appellant was
at work and carrying a box of files to her car when she slipped, falling on her left knee. After
reporting the injury to appellee, appellee provided appellant a list of potential treating physicians,
and she selected Dr. Thomas Martinelli. In September 2014, Dr. Martinelli recommended a total
left knee replacement. Dr. Martinelli noted that the knee had “arthritis . . . all over” and that
“ultimately [appellant] is heading toward knee replacement surgery.” By March 2015, appellant
still had not had a knee replacement but had continued receiving pain injections. Dr. Martinelli
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noted that “the process overall is going to be that she gets a knee replacement.” Appellant
sustained another injury in April 2015 when she tripped going up a staircase, and she finally
stated her desire to get a knee replacement. Finally, in June 2015, Dr. Martinelli examined
appellant again and wrote “[appellant] does need to get her knee replaced.”
After a hearing before a deputy commissioner, appellant’s claim for coverage of a total
knee replacement was denied. The deputy commissioner found, based on appellant’s extensive
history of left knee issues, that the August 2014 injury did not necessitate the knee replacement
surgery. The deputy commissioner relied on Dr. Lavine’s opinion and noted that while he had
not examined appellant in person following the August 2014 injury, that he had reviewed all of
her medical records and considered appellant’s entire history of knee problems. With specific
regard to the August 2014 injury, Dr. Lavine had “opined that [appellant] should have recovered
from [the] minor accident within approximately two months.” Appellant appealed to the
Commission, which affirmed the deputy commissioner. The Commission concluded that the
“medical record illustrated that [appellant] had significant, pre-existing left knee problems and
injuries” and that the August 2014 injury did not play a role in the causation. This appeal
followed.
ANALYSIS
I. The Commission Did Not Err in Determining Causation
In her first assignment of error, appellant asserts that the deputy commissioner and
Commission erred by rejecting the theory that the August 2014 injury necessitated the knee
replacement surgery. We disagree.
When examining an appeal from the Commission, this Court “view[s] the evidence and
all reasonable inferences that may be drawn from that evidence in the light most favorable to
employer, the party prevailing below.” Stillwell v. Lewis Tree Serv., 47 Va. App. 471, 475, 624
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S.E.2d 681, 682 (2006). Determining whether a causal link exists between an accident and a
debilitating injury involves a “consideration of all the circumstances.” Reserve Life Ins. Co. v.
Hosey, 208 Va. 568, 571, 159 S.E.2d 633, 635 (1968) (citation omitted). “Factual findings by
the [C]ommission that are supported by credible evidence are conclusive and binding upon this
Court on appeal.” S. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1991). “Likewise, the Commission’s conclusions upon conflicting inferences, legitimately
drawn from proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc., 225 Va.
97, 101, 300 S.E.2d 761, 763 (1983). “The fact that contrary evidence may be found in the
record is of no consequence if credible evidence supports the [C]ommission’s finding.”
Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991) (citing
Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986)). So long as the
record contains credible evidence supporting the Commission’s findings, any contrary evidence
may be disregarded. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
Here, the record contains significant, credible evidence establishing that appellant’s need
for a knee replacement long predated the August 2014 injury. Her arthritis had been documented
as far back as 2008 when she first underwent arthroscopic surgery. She was later diagnosed with
a more severe condition, degenerative arthritis, in 2011. During that time period, her treating
physician, Dr. Lavine, repeatedly advised appellant that a total knee replacement was an option
and that she would eventually have no choice. In August 2013, Dr. Lavine wrote “options are
either non-operative as she has done, or arthroplasty . . . eventually she will end up here.” Less
than a month later, in September 2013, appellant reported that her knee would catch, grind, and
give way, that she endured pain while walking, and that she could only stand for brief periods.
Dr. Lavine stabilized appellant’s knee pain with injections and prescription pain medications, but
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the record is clear that the non-operative treatment was never intended to completely obviate a
knee replacement surgery – it merely postponed the inevitable.
Furthermore, the Commission did not err in relying on Dr. Lavine’s opinion because he
treated appellant for an extensive period of time. See Alston v. U.S. Air, Inc., 61 O.I.C. 19, 20
(1982). Dr. Lavine consistently noted appellant’s eventual need for a knee replacement for over
two years. The Commission observed that “he treated the [appellant] in 2012. Dr. Lavine
reviewed [appellant’s] medical records and convincingly explained that the incident of August
2014 had no relationship to the [appellant’s] need for a total knee replacement.” Although
Dr. Martinelli stated that the August 2014 injury “worsened the underlying condition,” his notes
from October 2014 reflect that “ultimately [appellant] is heading toward knee replacement
surgery.” In March 2015, Dr. Martinelli wrote “the process overall, it is going to be that she gets
a knee replacement.” Thus, even after the injury appellant claims immediately necessitated a
knee replacement, her new physician’s diagnosis mirrored that rendered by Dr. Lavine prior to
the August 2014 injury – that a knee replacement would eventually be necessary. Not until June
2015 did Dr. Martinelli state unequivocally that appellant “need[ed] her knee replaced.”
Notably, Dr. Martinelli rendered that opinion following another injury to appellant’s knee, and
after appellant initiated her claim to the Commission.
We recognize that the record contains some evidence contrary to Dr. Lavine’s
conclusions, but our standard of review dictates adherence to the credible, factual determinations
made by the Commission. See Manassas Ice & Fuel, 13 Va. App. at 229, 409 S.E.2d at 826.
This Court is bound to follow the Commission’s findings so long as credible evidence exists
within the record. Id.Nothing in the record indicates that Dr. Lavine’s opinion is unsupported by credible
evidence. Appellant’s primary argument that Dr. Lavine’s opinion is not credible is that he
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“disregard[ed] the totality of Dr. Martinelli’s treatment” by failing to review appellant’s records
following the August 2014 injury. Upon review of the Commission’s reasoning, appellant’s
argument fails. The Commission “recognize[d] that Dr. Lavine did not examine [appellant] after
the August 2014 injury . . . [but] Dr. Lavine reviewed [appellant’s] medical records and
convincingly explained that the incident of August 2014 had no relationship to [appellant’s] need
for total knee replacement.” Thus, Dr. Lavine considered the August 2014 injury and remained
confident in his opinion. Dr. Lavine “opined that [appellant] should have recovered from [the
August 2014] minor accident within approximately two months.” In her brief, appellant omitted
this part of Dr. Lavine’s opinion and instead cherry-picked other statements, placing them out of
context to support her arguments.
This Court is not in a position to relitigate the facts and independently assess the medical
records. See S. Iron Works, 16 Va. App. at 134, 428 S.E.2d at 34. Moreover, while we may be
sympathetic to appellant’s circumstances, we are duty-bound to review the evidence in the light
most favorable to appellee, as the prevailing party below, and recognize that the Court must
defer to the Commission on any conflicting inferences. Stillwell, 47 Va. App. at 475, 624 S.E.2d
at 682; Watkins, 225 Va. at 101, 300 S.E.2d at 763.
Based on that standard, we hold that the Commission did not err in rejecting appellant’s
argument.
II. The Commission Did Not Err by Declining to Apply the Two-Causes Rule
Appellant’s second assignment of error argues that the Commission erred by not applying
the two-causes rule. We disagree.
“The Commission’s determination of causation is a finding of fact and is conclusive and
binding on appeal if supported by credible evidence in the record.” S. Iron Works, 16 Va. App.
at 134, 428 S.E.2d at 34. The two-causes rule applies when “a disability has two causes; one
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related to the employment and one unrelated.” Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28,
294 S.E.2d 805, 808 (1982) (quoting Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d
801, 802 (1981)). It is well established that the employer takes the employee as it finds her,
including pre-existing injuries and infirmities, and is responsible for the effect of a new accident
that aggravates, accelerates, or exacerbates the pre-existing condition and causes new injury.
Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985); S. Iron Works,
16 Va. App. at 133-34, 428 S.E.2d at 34. “[W]here the compensable work injury accelerates or
aggravates the pre-existing condition, thus requiring surgical intervention at a time earlier than
that previously anticipated, the employer is responsible for that surgery.” Spangler v. Cochran’s
Blocks, Inc., VWC File No. 140-10-69 (Feb. 9, 1998).
For the two-causes rule to apply, appellant had to prove that the August 2014 injury
damaged her knee to the extent that it accelerated her need for a total knee replacement.
However, as we already noted above, the record reflects that in the months following the August
2014 injury, appellant continued receiving the same non-operative treatment as before:
injections and pain medications. Furthermore, Dr. Martinelli noted that “ultimately [appellant] is
heading toward knee replacement surgery” and “the process overall is going to be that she gets a
knee replacement.” These notes do not support the inference that the August 2014 injury
accelerated appellant’s condition and “require[ed] surgical intervention at a time earlier than that
previously anticipated.” Spangler, VWC File No. 140-10-69. On the contrary, the evidence
showed that appellant’s prognosis did not change following the August 2014 injury.
Accordingly, the Commission did not err in declining to apply the two-causes rule
because it concluded that appellant’s need for a knee replacement arose from a single cause.1
1
Appellant cites Smith for the proposition that the Supreme Court has previously
reversed the Commission for failing to apply the two-causes rule, and asserts that Smith dictates
the same result here. A closer examination of Smith leads us to conclude that it is inapplicable.
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Because the Commission concluded that causation was limited to appellant’s prior history, a
further analysis of causation under the two-causes rule would have been extraneous.
The Commission’s factual determinations are supported by credible evidence and are
binding on this Court. Therefore, we hold that the Commission did not err in denying appellant’s
claim.
Affirmed.
In Smith, the Court did not reverse the Commission on the merits, but reversed and remanded on
procedural grounds because the Commission had not clearly developed within the record
(1) whether the claimant even suffered from the disputed medical issue, and (2) whether the
medical issue contributed to claimant’s disability. See Smith, 224 Va. at 28-29, 294 S.E.2d at
808.
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