A.D.Stowe and Reliance National Indemnity v. Ricks ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
A. D. STOWE AND
RELIANCE NATIONAL INDEMNITY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2704-98-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 27, 1999
OTIS WAYNE RICKS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Darlene P. Bradberry; Breeden, MacMillan &
Green, P.L.C., on briefs), for appellants.
Appellants submitting on briefs.
(Carlton F. Bennett; Bennett and Zydron,
P.C., on brief), for appellee. Appellee
submitting on brief.
A. D. Stowe, Inc. appeals a Virginia Workers' Compensation
Commission decision affirming the deputy commissioner's finding
that Stowe was responsible for Otis W. Ricks's medical
treatment. Stowe contends that the commission erred in finding
(1) substantial evidence of a causal relationship between the
July 1997 accident and claimant's treatment and disability; (2)
sufficient evidence to support Stowe's responsibility for
Ricks's medical treatment; (3) Stowe was not prejudiced by the
striking of its defenses, its inability to cross-examine Ricks,
and call its witnesses; and (4) there was no mutual mistake as
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
to employee's average weekly wage. For the following reasons,
we affirm the commission's decision.
On November 26, 1996, Ricks, while employed by Heitpas
Construction Company, fell approximately 28 feet (first fall).
Ricks suffered a grade 1 acromioclavicular (AC) separation of
the left shoulder and other injuries. Ricks began treatment
with orthopedic surgeon Dr. Lawrence Shall on January 22, 1997.
On February 18, 1997, Dr. Shall performed surgery to Ricks's
left shoulder which he described as arthroscopy and subacromial
decompression. Heitpas agreed that the injury was compensable
and awarded Ricks temporary total disability benefits from
November 26, 1996 through March 26, 1997. Ricks returned to
full-duty work April 17, 1997. Ricks did not miss any work even
though he still experienced some pain in his shoulder.
Dr. Shall testified that Ricks suffered a torn ligament and
a dent on the back of the humerus bone as a result of the first
fall. Until April 17, 1997, Ricks's visits were "routine
post-op" but he was still complaining of pain, which was
unusual. At this visit, Ricks was given a cortisone injection
for residual bursitis. During a May 12, 1997 office visit,
Ricks complained of pain in a new area, which Dr. Shall termed a
"new finding," and was given another cortisone injection. On
June 30, 1997 Dr. Shall diagnosed Ricks with distal clavicle
osteolysis and believed he "might need surgery at some point in
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the future. . . ." The doctor could not determine the cause of
the need for the additional surgery.
On July 17, 1997, while employed by Stowe, Ricks fell and
sustained an injury. He was doing some metal stud framing on
scaffolding when the sheetrock beneath him broke; he fell ten
feet onto his left side. Ricks testified this pain was
different from, and lower than, the pain he experienced from the
first fall. Dr. Shall testified that Ricks complained of pain
directly over his AC joint. Dr. Shall felt that Ricks had a
strain or sprain on top of his existing injury. An MRI
performed August 13, 1997 showed no significant anatomical
change in Ricks's condition after the second fall.
Although he had returned to work and still experienced pain
from the first fall, Ricks’s symptoms increased significantly
after the second fall. As a result, he underwent a second
surgery September 23, 1997 whereby Dr. Shall took out the end of
the clavicle. Dr. Shall testified that the first fall left
Ricks susceptible to the AC joint synovitis and clavicle
osteolysis. Dr. Shall could not determine to a degree of
medical certainty whether Ricks's condition was caused by the
second fall.
Stowe's first contention is that Ricks did not establish by
a preponderance of the evidence that the second fall created a
new injury to the shoulder. See Code § 65.2-101. Stowe claims
that Ricks's AC joint, which was corrected by surgery, did not
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change after the second fall. Thus, Stowe argues the commission
erred in finding that the second fall resulted in a new shoulder
injury. We disagree.
On appeal, we construe the evidence in the light most
favorable to Ricks. See R.G. Moore Bldg. Corp. v. Mullins, 10
Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
determination of causation is a factual finding that will be
upheld on appeal if supported by credible evidence. See C.D.S.
Constr. Servs. v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236,
240 (1978); James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989). "In determining whether
credible evidence exists, [this Court will] not retry the facts,
reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991) (citation omitted). "The fact that there is contrary
evidence in the record is of no consequence if there is credible
evidence to support the commission's finding." Id.The only medical testimony presented was that of the
treating physician, Dr. Shall. Dr. Shall noted Ricks's new
symptoms as a result of the second fall: a sprain or strain on
top of his previous injury; a bruise on the front of his arm;
and Ricks's inability to move his arm. Ricks testified that the
pain was in a new location, lower in the shoulder than the pain
from the first fall. Claimant's testimony regarding the injury
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is a factor to consider in weighing the evidence. See Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,
154 (1996) (claimant's testimony may be considered to determine
causation, "especially where the medical testimony is
inconclusive"). The exacerbation of a pre-existing injury
constitutes a new compensable accident where it arises out of
and in the course of employment. See Ohio Valley Constr. Co. v.
Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985) (a new
injury which exacerbates a previous condition resulting in
accelerated disability is compensable).
The commission found that Ricks had sufficiently recovered
from the first injury, evidenced by the fact that he had
returned to full-duty work as a construction laborer on April
17, 1997. While Dr. Shall believed that Ricks might need
surgery in the future, it was not scheduled until after the
second fall occurred. We find sufficient credible evidence to
support the commission's finding that the second injury was a
new compensable injury that aggravated the pre-existing
condition.
Stowe next contends that the evidence is not sufficient to
support the finding that it is responsible for Ricks's medical
treatment by Dr. Shall, namely the September 1997 surgery. We
disagree. After the second fall, Ricks was unable to work. Dr.
Shall noted that the second injury necessitated the timing of
the second surgery by exacerbating and changing Ricks's
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symptoms. Where an employee's accident causes increased injury
and disability, even though to the same anatomic area of a
previous condition which continued to be symptomatic, the second
accident establishes an independent injury under the Workers’
Compensation Act where it arises out of and in the course of the
employment. See Pelerin v. Hematology and Oncology Assocs.,
Ltd., 67 O.I.C. 212 (1988). The second injury can be
independently compensable even though it aggravates a
pre-existing condition. We find sufficient credible evidence to
support the commission's finding that Stowe is responsible for
the medical treatment Ricks received after the second fall.
Stowe next contends that it was prejudiced by the striking
of its defenses, the limitation of its right to cross-examine
Ricks and the commission's refusal to let it call witnesses. We
disagree.
Stowe failed to proffer any of the testimony excluded from
the hearings. Where a party alleges error based on the
exclusion of evidence, it must make a proffer of proof for the
court to determine if he has been prejudiced. See City of
Richmond Police Dep't v. Bass, 26 Va. App. 121, 130, 493 S.E.2d
661, 665 (1997) ("Proffer facilitates appellate review of an
exclusion of testimony."). Absent a proper proffer, we are
precluded from considering this issue.
Stowe argues that it was limited in its defense by the
commission's refusal to allow it to cross-examine Ricks.
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Stowe's defense was medical causation, and the commission
limited Stowe’s questioning to that defense alone. While Stowe
could have raised the defense of Ricks's misrepresentation, it
did not do so.
Finally, Stowe complains that there was a mutual mistake of
fact with respect to Ricks's average weekly wage. The
commission's award was based on the parties' stipulation to an
average weekly wage of $540. Parties are bound by their
stipulations. See Barrick v. Board of Supervisors of Mathews
County, 239 Va. 628, 631, 391 S.E.2d 318, 320 (1990). Stowe
failed to meet its burden to produce evidence to justify
vacating the stipulation.
For the foregoing reasons, we affirm the commission's
decision.
Affirmed.
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