Rodney Barnes v. Marshalls, Inc ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
RODNEY BARNES
MEMORANDUM OPINION*
v. Record No. 2843-02-2 PER CURIAM
FEBRUARY 25, 2003
MARSHALLS, INC. AND
CONTINENTAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gregory O. Harbison; Geoffrey R. McDonald &
Associates, P.C., on brief), for appellant.
(C. Ervin Reid; Wright, Robinson, Osthimer &
Tatum, on brief), for appellees.
Rodney Barnes (claimant) contends the Workers' Compensation
Commission erred in finding that he failed to prove that his
right arm ulnar nerve condition was causally related to his
December 24, 2000 compensable injury by accident. Upon
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The medical records revealed that when claimant first
sought medical treatment on December 26, 2000, from Dr. Bruce
Miller, he reported that a piece of steel had fallen on his neck
on December 24, 2000. X-rays were normal, and Dr. Miller
diagnosed a contusion and prescribed medication. Subsequently,
Dr. Miller referred claimant to Dr. Robert Adelaar, an
orthopedic surgeon.
Dr. Adelaar, who first examined claimant on February 19,
2001, detected no neurological loss in claimant's right upper
extremity, no shoulder impingement, and no elbow or wrist
pathology. Dr. Adelaar ordered physical therapy for a trapezius
injury on claimant's right side and imposed a lifting
restriction.
Claimant continued to treat with Dr. Adelaar, who ordered
EMG and nerve conduction studies, which were performed on March
26, 2001. Those tests showed evidence of mild ulnar neuropathy
at the elbow, with no evidence of radiculopathy, although the
testing was limited due to claimant's discomfort.
On May 7, 2001, claimant told Dr. Adelaar that his shoulder
pain was gone, but that he still had some limited motion.
Dr. Adelaar noted that claimant might have to undergo ulnar
nerve transposition in the future.
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On August 24, 2001, Dr. Adelaar opined that claimant's
right upper extremity had reached maximum medical improvement.
On October 1, 2001, Dr. Adelaar reported that a second EMG
showed an ongoing right ulnar neuropathy at the elbow localized
at the medial epicondyle. Dr. Adelaar recommended surgery. On
December 17, 2001, Dr. Adelaar performed a decompression of
claimant's ulnar nerve and subcutaneous transposition of the
right ulnar nerve, right elbow. Dr. Adelaar excused claimant
from work for six weeks.
Several days before claimant's December 17, 2001 surgery,
Dr. William D. Brickhouse, an orthopedist, examined claimant and
reviewed his medical records. Dr. Brickhouse opined that the
only injury sustained by claimant as a result of the December
24, 2000 injury by accident was a trapezius muscle sprain, which
was not related to claimant's right arm compressive ulnar
neuropathy.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). The commission weighed the medical
evidence and accepted Dr. Brickhouse's opinion. Dr. Adelaar did
not render any specific opinion as to the cause of claimant's
right ulnar nerve condition.
In light of Dr. Brickhouse's opinion, the lack of any
medical evidence that claimant sustained an arm or elbow injury
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at the time of the December 24, 2000 accident, and the lack of
any persuasive opinion from Dr. Adelaar regarding causation, we
cannot find as a matter of law that claimant's evidence
sustained his burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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