James D. Wagner v. Jett Mechanincal, Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JAMES D. WAGNER
v. Record No. 1844-95-4 MEMORANDUM OPINION *
PER CURIAM
JETT MECHANICAL, INC. MARCH 5, 1996
AND
OHIO CASUALTY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Jerry O. Talton, on brief), for appellant.
(Dawn E. Boyce; Trichilo, Bancroft, McGavin,
Horvath & Judkins, on brief), for appellees.
James D. Wagner ("claimant") contends that the Workers'
Compensation Commission erred in granting the change in condition
application filed by Jett Mechanical, Inc. and its insurer
(hereinafter collectively referred to as "employer") and in
terminating his compensation benefits as of April 6, 1994.
Specifically, claimant argues that the commission should have
required employer to file a Petition to Vacate the September 29,
1993 award, on the basis of fraud, mutual mistake, or imposition.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
"'Where . . . causal connection between an industrial
accident and disability has been established by . . . entry of an
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
award, an employer has a right to apply for termination of
benefits upon an allegation that the effects of the injury have
fully dissipated and the disability is the result of another
cause.'" Suite v. Clinchfield Coal Co., 8 Va. App. 554, 555, 383
S.E.2d 21, 22 (1989) (quoting Celanese Fibers Co. v. Johnson, 229
Va. 117, 120, 326 S.E.2d 687, 690 (1985)), aff'd on rehearing en
banc, 9 Va. App. 492, 389 S.E.2d 187 (1990).
In its April 8, 1994 change in condition application,
employer sought to terminate claimant's benefits on the basis
that his current disability was unrelated to his August 6, 1993
compensable injury by accident. Employer filed Dr. Ramon
Jenkins' February 24, 1994 report in support of its application.
Dr. Jenkins' February 24, 1994 report makes clear that,
although he accepted claimant's assertion of an electrical shock
accident occurring at work on August 6, 1993, he did not believe
that the consequences of that accident were severe enough to
result in ongoing disability. Thus, Dr. Jenkins concluded that
claimant had completely recovered from the August 6, 1993
industrial accident. In addition, Dr. Jenkins' testimony
revolved around his opinion that claimant's disability, if any,
as of February 24, 1994, was not related to his exposure to an
electrical shock on August 6, 1993.
Dr. Jenkins' reports and testimony were sufficient to raise
the issue of lack of causal connection between the industrial
accident and claimant's continuing disability. Therefore, the
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commission did not err in refusing to require employer to file a
Petition to Vacate the award, and in considering its change in
condition application on the merits using a preponderance of the
evidence standard, rather than a clear and convincing evidence
standard.
Because claimant did not appeal the commission's finding
that his current disability was unrelated to his compensable
industrial accident on its merits, we will not review this
finding on appeal.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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