Kenneth Martin v. United Continental Holdings, Inc. ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, AtLee and Malveaux
UNPUBLISHED
Argued at Fredericksburg, Virginia
KENNETH MARTIN
MEMORANDUM OPINION* BY
v. Record No. 1117-19-4 JUDGE MARY BENNETT MALVEAUX
DECEMBER 17, 2019
UNITED CONTINENTAL HOLDINGS, INC.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Kathleen Grace Walsh (Law Office of Kathleen Grace Walsh, on
brief), for appellant.
Jennifer R. Helsel (Franklin & Prokopik, PC, on brief), for appellee.
Kenneth Martin (“claimant”) appeals a decision of the Virginia Workers’ Compensation
Commission (“the Commission”) denying his claim for benefits based upon an alleged change in
condition. He argues that the Commission erred in failing to find that his left shoulder condition
was a compensable consequence of his right shoulder injury and in substituting its medical
judgment for the judgment of his treating physician. For the reasons that follow, we affirm the
Commission’s decision.
I. BACKGROUND
“On appeal from a decision of the . . . Commission, the evidence and all reasonable
inferences that may be drawn from that evidence are viewed in the light most favorable to the
prevailing party below,” in this case, United Continental Holdings, Inc. (“employer”). City of
Charlottesville v. Sclafani, 70 Va. App. 613, 616 (2019) (alteration in original) (quoting
Anderson v. Anderson, 65 Va. App. 354, 361 (2015)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
So viewed, the evidence established that claimant worked as an aircraft mechanic for
employer. At work on February 14, 2014, claimant injured his right shoulder. Pursuant to an
agreed order, employer paid claimant medical, temporary total disability, and permanent partial
disability benefits for this injury.
Dr. Raymond Lower began treating claimant for a dislocated right shoulder and torn right
rotator cuff in March 2014. Claimant, who is right-handed, received medication and physical
therapy. In July 2014, he reported to Dr. Lower that he was “able to do full duty [work] but
modifie[d] the use of his right arm.”
In August 2014, claimant told Dr. Lower that he had noticed improvement in the strength
of his right shoulder but that overhead movements, which were important for his work duties,
still caused him problems. Claimant also reported that he was “able to do bench press, cable pull
downs, [and] lat pull downs with no difficulty. The primary activity that exacerbates the pain is
any type of overhead activity.” Dr. Lower recommended surgery to repair claimant’s right
rotator cuff and performed the recommended surgery in December 2014.
Claimant resumed physical therapy and reported during a February 2015 examination
that he was “doing well.” During that appointment, Dr. Lower informed claimant that he could
gradually resume strength training.
In March 2015, claimant told Dr. Lower that the strength and range of motion in his right
shoulder had “returned.” However, he also reported left elbow pain which had developed over
the previous six months due to “use [of] the left extremity to compensate for the right.”
Dr. Lower recommended modified duty for claimant’s right shoulder. He also noted his belief
that claimant’s left elbow pain was “directly related to the right shoulder injury as [claimant] has
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compensated over the last year using the left upper extremity and has developed lateral
epicondylitis secondary to alterations in use.”1
In May 2015, claimant reported to Dr. Lower that after returning to full-duty work he
“ha[d] no complaints” and his left elbow was “doing better.” Dr. Lower noted that an elbow
brace was helping claimant. The doctor informed claimant that he could “transition to a home
exercise program.”
Also during May 2015, employer’s third-party workers’ compensation administrator
contacted Dr. Lower and informed him that claimant had reported “problems with his left arm
since last summer.” The administrator requested Dr. Lower’s medical opinion on claimant’s
“left arm/elbow complaints as they relate to the original injury.” Dr. Lower replied that in his
medical opinion, those complaints were a direct result of claimant’s February 2014 injury
“because [claimant] has had to use the left extremity to compensate for the right.” Asked
whether the complaints were a new injury or a compensable consequence of the February 2014
injury, Dr. Lower replied that he “believe[d] that it is directly related to the right shoulder injury
as [claimant] has compensated over the last year using upper left extremity and has developed
lateral epicondylitis.”
Dr. Lower’s July 2015 treatment notes indicate that claimant had completed physical
therapy and was doing full duty work with no significant limitations. With respect to claimant’s
left elbow, he reported “good days and bad days” with some mild soreness, although he had no
difficulty using a wrench or screwdriver. Dr. Lower noted that while claimant no longer
required physical therapy, he would “continue to work on strengthening.”
Lateral humeral epicondylitis is commonly known as “tennis elbow.” Epicondylitis,
1
Taber’s Cyclopedic Medical Dictionary (23d ed. 2017).
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Two months later, in September 2015, claimant told Dr. Lower that he had no complaints
about his full-duty work. While claimant still experienced mild soreness and some weakness in
his right shoulder, especially when working overhead, as well as “slight tenderness” along his
left elbow, he was “[o]verall doing well.” Dr. Lower noted that while claimant would have a
permanent partial disability rating due to residual weakness from his right shoulder injuries, his
“[l]eft elbow should completely heal.”
During claimant’s December 2015 appointment with Dr. Lower, claimant did not report
any left arm or left shoulder complaints.
Dr. Lower last examined claimant on February 9, 2016, two years after claimant’s right
shoulder injury. Claimant continued to report some weakness when working overhead, as well
as fatigue when he had to perform tasks with his “right upper extremity above shoulder level.”
He did not report any left arm or left shoulder complaints. Dr. Lower’s treatment notes reflect
that claimant had reached maximum medical improvement with a 6% impairment of his right
upper extremity due to weakness.
Two years later, on April 19, 2018, Dr. Adam Lorenzetti examined claimant for reported
left shoulder pain. Claimant told Dr. Lorenzetti that deep, dull pain had begun a few weeks
earlier when he was lifting weights. Claimant also stated that he had experienced “the same pain
for several years now and it started about 9 months to a year after his right shoulder injury that
occurred at work.” Claimant told the doctor that after his right shoulder surgery, he began
experiencing more left shoulder pain and was “seen by Dr. Lower for this as well [as] treated
nonoperatively.” According to claimant, the pain only occurred when he “increase[ed] his
lifting. . . . Every time he increase[s] his weight [s]pecifically on bench press and shoulder press
he’ll have sharp pain to his left shoulder.” Dr. Lorenzetti diagnosed impingement syndrome of
the left shoulder and recommended claimant undergo an MRI exam. Based in part upon the MRI
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results, Dr. Lorenzetti diagnosed claimant in June 2018 with a torn left rotator cuff and left
rotator cuff and biceps tendonosis.
On July 25, 2018, counsel for claimant wrote to Dr. Lower about claimant’s left shoulder
“trouble” and requested his medical opinion about its relationship to claimant’s February 2014
injury. Counsel for claimant provided the following statement, to which Dr. Lower indicated his
assent: “To a reasonable degree of medical certainty [claimant’s] left shoulder complain[t]s are
related to overuse of the left shoulder because of the right shoulder injury.” Dr. Lower also
wrote that claimant “[h]ad to use for about 6-8 mo prior to [surgery] in 2014 – [b]ecause of
residual weakness & his job,” and reiterated that in his opinion, “the left shoulder is related to the
right.”
Claimant filed a claim for benefits on August 1, 2018, alleging a change in condition and
seeking to add his left shoulder complaints as a compensable consequence of his February 2014
right shoulder injury.
In connection with this claim, claimant testified before the deputy commissioner that
after returning to full-duty work, his right shoulder was “weaker than it used be” when working
overhead. Consequently, when performing any functions above shoulder or head height,
claimant had to “use a lot more of [his] left side to compensate.” Claimant stated that he first
began to notice pain and discomfort in his left shoulder during his recovery from surgery and that
it was “mainly [caused by] working overhead and during exercise. Any kind of exercising,
weightlifting, the pain would flare up.” Claimant also testified that he had been weightlifting in
connection with physical therapy, as well as at home. During cross-examination, claimant
confirmed that the last time he had seen Dr. Lower had been on February 9, 2016.
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The deputy commissioner denied claimant’s claim, finding that he had failed to
demonstrate that his left shoulder condition was causally related to his compensable right
shoulder injury from February 2014. Claimant requested review by the full Commission.
A majority of the Commission affirmed the deputy commissioner. It noted claimant’s
argument that Dr. Lower’s medical opinion as to the causation of claimant’s left shoulder
condition was uncontradicted and should be given great weight. However, the Commission
found that Dr. Lower had not examined claimant since February 2016 and that nothing in the
record indicated that he had reviewed Dr. Lorenzetti’s 2018 evaluation notes in reaching his
conclusion as to causation. Further, and “[m]ost significantly, Dr. Lower’s contemporaneous
office notes . . . mention no left shoulder complaints. Rather, the claimant consistently, and
specifically, reported left elbow pain due to compensating for the right shoulder.” The
Commission also noted Dr. Lorenzetti’s understanding that claimant’s left shoulder pain began
some nine to twelve months after his right shoulder surgery, and “in correlation with [claimant’s]
personal weight lifting.” It concluded that “[t]he record does not reflect that during this time
frame, Dr. Lower had directed the claimant to be performing exercises in post-surgical physical
therapy, or that in 2018, Dr. Lower knew of the claimant’s weight lifting when he issued his
opinion regarding causation.” Consequently, the Commission found no error in the deputy
commissioner’s decision to afford “little probative value” to Dr. Lower’s July 2018 opinion.
Claimant appealed the Commission’s decision to this Court.
II. ANALYSIS
Claimant argues that the Commission erred in failing to find that his left shoulder
condition was a compensable consequence of his right shoulder injury and in substituting its
medical judgment for the judgment of claimant’s treating physician, Dr. Lower. He contends
that no credible evidence supports the Commission’s finding because “[t]here is no opinion
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evidence in the file other than the opinion of Dr. Lower” and that the Commission must give
great weight to a treating physician’s opinion and may not substitute its own judgment on
matters of medical expertise. Further, claimant asserts, the record contains no additional
evidence to support the Commission’s finding.
Code § 65.2-708(A) provides that a party in interest may request the Commission to
review an award of benefits based upon “the ground of a change in condition.” “[I]n an
application for review of any award on the ground of change in condition, the burden is on the
party alleging such change to prove his allegations by a preponderance of the evidence.” Saffert
v. Fairfax Cty. Sch. Bd., 59 Va. App. 458, 464 (2012) (alteration in original) (quoting Herbert
Clements & Sons, Inc. v. Harris, 52 Va. App. 447, 458 (2008)). “To receive an award, a
claimant must prove his change of condition is causally related to the original occupational
injury.” Thompson v. Brenco, Inc., 38 Va. App. 617, 622 (2002).
“The [C]ommission’s determination regarding causation is a finding of fact.”
Farmington Country Club, Inc. v. Marshall, 47 Va. App. 15, 26 (2005). Such a finding “need not
be based exclusively on medical evidence,” and “may be proved by either direct or
circumstantial evidence, including . . . ‘the testimony of a claimant.’” Id. (quoting Dollar Gen.
Store v. Cridlin, 22 Va. App. 171, 176 (1996)). “Any medical opinion offered into evidence ‘is
not necessarily conclusive, but is subject to the [C]ommission’s consideration and weighing.’”
Id. (quoting Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677 (1991)). The weight
assigned to such an opinion is a factual matter within the purview of the Commission. Paramont
Coal Co. Virginia, LLC v. McCoy, 69 Va. App. 343, 358 (2018).
“Decisions of the [C]ommission as to questions of fact are conclusive and binding upon
this Court if supported by credible evidence.” United Airlines, Inc. v. Hayes, 58 Va. App. 220,
238 (2011); see also Code § 65.2-706(A). Thus, where credible evidence supports the
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Commission’s factual findings, “[t]he fact that there is contrary evidence in the record is of no
consequence.” Samartino v. Fairfax Cty. Fire and Rescue, 64 Va. App. 499, 506 (2015) (quoting
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894 (1991)). “In determining whether credible
evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of the witnesses.” Smith-Adams v.
Fairfax Cty. Sch. Bd., 67 Va. App. 584, 590 (2017) (quoting Wagner Enters., Inc., 12 Va. App.
at 894).
We are unpersuaded by claimant’s argument that the Commission erred in failing to find
that his left shoulder condition was a compensable consequence of his right shoulder injury.
Claimant testified that he began to feel pain and discomfort in his left shoulder while recovering
from his December 2014 surgery. He attributed its cause to overhead work and weightlifting at
home and in physical therapy. However, Dr. Lower’s treatment notes reflect that claimant never
reported left shoulder pain or discomfort while in his care from March 2014 through claimant’s
surgery in December 2014, or from claimant’s surgery through his last examination by
Dr. Lower in February 2016. Claimant only reported left elbow pain, soreness, and tenderness,
which Dr. Lower diagnosed and treated as lateral epicondylitis related to claimant compensating
for his right shoulder injury. When claimant sought treatment from Dr. Lorenzetti in April 2018,
he told that doctor that Dr. Lower had seen and treated him for left shoulder pain, but the record
does not support this statement. Further, in speaking with Dr. Lorenzetti, claimant did not
specifically associate his left shoulder pain with any physical therapy for his right shoulder
injury. Instead, he correlated his pain with his personal weightlifting regimen, stating that the
pain only occurred when he sought to increase the weight he was lifting. Thus, claimant’s
testimony about his left shoulder condition is contradicted by the medical record, including his
statements to Drs. Lower and Lorenzetti, and does not support the conclusion that the
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Commission erred in failing to find a causal relationship between claimant’s left and right
shoulder injuries.
As noted by claimant, Dr. Lower’s medical opinion of July 2018, which did assert a
causal connection between the injuries, was uncontradicted by other medical opinion evidence.
However, contrary to the implication of claimant’s argument, Dr. Lower’s opinion was not
dispositive or beyond critical consideration by the Commission. While a treating physician’s
opinion is generally “entitled to great weight, . . . the [C]ommission is not required to accept
it[.]” Hayes, 58 Va. App. at 238. Here, the Commission correctly noted that Dr. Lower’s
contemporaneous office notes indicated no left shoulder complaints by claimant, including
during the period when claimant later testified that his left shoulder pain began. It found “[m]ost
significant[]” the absence of evidence of left shoulder complaints to support Dr. Lower’s
causation opinion. The Commission also correctly noted that Dr. Lower had not examined
claimant during the nearly two-and-a-half years between February 2016 and his July 2018
medical opinion, and further, that the record did not indicate that Dr. Lower was aware of
Dr. Lorenzetti’s 2018 treatment notes when he issued his opinion. Thus, when Dr. Lower opined
that there was a causal connection between claimant’s compensable right shoulder injury and his
left shoulder condition, he was stating his opinion on a condition which was never presented to
him by claimant or diagnosed or treated by him while he was claimant’s treating physician.
Consequently, we hold that the record supports the Commission’s determination that the deputy
commissioner correctly afforded little probative value to Dr. Lower’s medical opinion.2
2
Claimant also argues that Dr. Lower’s May 2015 response to employer’s third-party
workers’ compensation administrator supports his attribution of a causal connection between
claimant’s right shoulder injury and his left shoulder condition. However, the administrator
inquired only about claimant’s “left arm/elbow complaints.” Dr. Lower’s response confined
itself to such complaints, noting that because of overcompensating for his right shoulder injury
with his “upper left extremity,” claimant had developed lateral epicondylitis in his left elbow.
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Because credible evidence in the record supports both the Commission’s weighing of
Dr. Lower’s medical opinion and its finding that there was no causal relationship between
claimant’s left shoulder condition and his compensable right shoulder injury, we hold that the
Commission did not err in denying the claim alleging a change in condition.
III. CONCLUSION
For the reasons stated above, we affirm the Commission’s decision.
Affirmed.
Thus, Dr. Lower did not attribute any left shoulder complaints to claimant’s extra reliance on his
“upper left extremity”—only left arm and elbow complaints.
Claimant further argues that the record contradicts the Commission’s statement that the
record does not reflect that Dr. Lower was aware of claimant’s weightlifting when he issued his
July 2018 causation opinion. He contends that the fact that Dr. Lower told claimant in February
2015 that he could gradually resume strength training comprises part of “the same history
that . . . claimant testified to at the hearing and supports Dr. Lower’s opinion with regard to
overuse of the left arm/shoulder.” However, it is clear from the Commission’s opinion that
regardless of the evidence with respect to Dr. Lower’s awareness of any weightlifting, the
Commission found that the “[m]ost significant[]” reason for affording little probative value to
Dr. Lower’s opinion was the fact that his treatment records did not reflect any left shoulder
complaints by claimant. Thus, any error by the Commission in its statement with respect to
Dr. Lower’s awareness of claimant’s weightlifting does not alter our analysis.
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