United Parcel Service v. Douglas J. Wheeler ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
UNITED PARCEL SERVICE OF AMERICA AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2488-01-2 JUDGE JERE M. H. WILLIS, JR.
MAY 14, 2002
DOUGLAS J. WHEELER, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John Chadwick Johnson (Christopher M. Kite;
Catherine I. Henritze; Frith Anderson &
Peake, P.C., on brief), for appellants.
Gregory O. Harbison (Geoffrey R. McDonald &
Associates, on brief), for appellee.
United Parcel Service of America ("UPS") appeals a decision
of the Workers' Compensation Commission awarding Douglas J.
Wheeler, Sr. benefits for a total knee replacement resulting
from an aggravation of a pre-existing, compensable left knee
injury. UPS contends that the commission's finding that Wheeler
established by a preponderance of the evidence that the knee
replacement is necessitated by his accident of July 1, 1998, is
unsupported by the evidence. We affirm the commission's
decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
On appeal, we must view the evidence in the light most
favorable to the party prevailing below. Creedle Sales Co. v.
Edmonds, 24 Va. App. 24, 26, 480 S.E.2d 123, 124 (1997).
A. INJURIES
Douglas Wheeler has been employed by UPS as a package car
and truck driver for over thirty years, during the course of
which he has sustained several workplace accidents. In July
1982, he injured his left knee and was treated by
Dr. Crickenberger for a torn medial meniscus. On September 16,
1982, Dr. Crickenberger performed surgery on Wheeler's left
knee. He released Wheeler to light duty on December 6, 1982.
On April 25, 1983, Wheeler returned to Dr. Crickenberger.
He complained that he had experienced increased swelling in his
left knee over the previous four weeks, as a result of striking
his knee on a metal bar as he stood from a table. On May 2,
1983, Dr. Crickenberger diagnosed traumatic fusion of the left
knee. Wheeler returned to full duty that day.
On August 30, 1983, Wheeler returned to Dr. Crickenberger
for a six-month check-up. Dr. Crickenberger noted that "[i]n
view of the recurrent synovial thickening and effusion and the
fact that the taps are always bloody by history . . . I have
arranged a consultation with Dr. Pendleton for rheumatology."
In September 1983, Dr. Crickenberger re-examined Wheeler.
He noted that Dr. Pendleton had found no arthritis. However, he
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felt that further arthroscopic surgery was required and
scheduled Wheeler for surgery. On October 5, 1983, Wheeler
underwent arthroscopic surgery with partial synectomy. On
October 10, 1983, Dr. Crickenberger noted that Wheeler was "up
to walking a mile a day. At surgery he was found to have
significant pigmented villondular synivitis [sic] . . . ."
Between October 1983 and May 1986, Dr. Crickenberger
treated Wheeler conservatively. His office notes repeatedly
diagnose Wheeler as suffering from pigmented villonodular
synovitis ("PVN") and report a regimen of prescription
medications. Other than a five-week period following a
December 5, 1983 visit, it does not appear that any work
restrictions were placed on Wheeler. On June 18, 1986, Wheeler
once again underwent arthroscopic surgery to address the PVN.
In his office note the following day, Dr. Crickenberger stated
that the PVN had progressed and "basically destroyed the medial
meniscus," requiring significant synovial resection.
Wheeler was released to work on September 15, 1986. He
continued to experience swelling and discomfort in the left
knee. On July 1, 1998, his left knee buckled, causing him to
fall out of the cab of his truck. He continued working for
several days, but on July 6, 1998, he sought medical treatment
from Dr. Powledge. Because of Wheeler's long-standing treatment
history with Dr. Crickenberger, Dr. Powledge referred him to
Dr. Crickenberger.
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Dr. Crickenberger examined Wheeler on July 21, 1998 and
referred him to Dr. McCue. On August 17, 1998, Dr. McCue
recommended a synovectomy, which was performed on October 1,
1998. During follow-up treatment, between December 1998 and May
1999, both Dr. Crickenberger and Dr. McCue noted that Wheeler
had persistent swelling/effusion of the left knee. On June 28,
1999, Wheeler reported decrease in pain and exhibited a range of
motion of zero to ninety degrees. He was released to work.
On September 20, 1999, Dr. Crickenberger again saw Wheeler
and noted continued diffuse swelling. He also noted that the
knee had good range of motion and was stable. On the same day,
Dr. McCue noted in a letter to Dr. Crickenberger that Wheeler
"may well be ready for a knee replacement." On June 22, 2000,
Dr. Crickenberger advised Wheeler to undergo the surgery. In
his notes he addressed the relationship between Wheeler's PVN
and the March 1982 accident.
Certainly the patient had the injury to his
knee approximately 3/82. No problem prior
to that. Whether or not the PVN was there
at the time of the injury there is no way of
knowing, but that if it were there certainly
you can argue that the injury aggravated an
underlying problem. On the other hand,
certainly people get PVN and it progresses
without trauma. Patient is advised that it
is difficult to look in crystal ball [sic]
and make a definite decision in reference to
this matter with the information available.
* * * * * * *
Patient was advised that the trauma did not
cause the PVN but he has a fairly sound
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argument that the trauma and activities at
work have contributed to the underlying
problem.
* * * * * * *
I would encourage him to resolve this
problem ASAP and proceed with surgery as
outlined by Dr. McCue.
Wheeler elected to undergo the surgery. However, UPS denied
authorization, and the surgery was postponed pending the
resolution of this issue.
B. EVIDENCE RELATING TO CAUSATION
On April 28, 1999, Dr. Crickenberger responded to an
inquiry regarding the causal relationship between the July 1,
1998 accident and the PVN as follows:
Is the left knee pigmented villondular
synovitis causality [sic] related to the
slip and fall of 07-01-98 within reasonable
medical certainty? Yes -- injury aggravated
underlying synovitis.
Is the industrial accident of the left knee
on 07-01-98 the major consequentially [sic]
cause of the villondular synovitis? Yes
-- synovitis pre existing injury was the
major aggravating cause.
In a letter to Wheeler's then attorney, dated August 15,
2000, Dr. Crickenberger wrote, "I addressed the problem of
having no problems of his knee prior to his initial injury in
3/82 and that certainly the injury could aggravate the
underlying condition of PVN."
On September 19, 2000, Dr. McCue responded to a medical
questionnaire and answered the following:
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Do you believe within a reasonable degree of
medical probability that the injury which
Mr. Wheeler suffered to his left knee on
July 1, 1998 aggravated the pigmented
villondular [sic] synovitis? The injury
that Mr. Wheeler suffered on 7-1-98
certainly aggravated the pigmented
villonodular synovitis, but no-one is
exactly sure what the originating cause of
the [PVN] cause [sic] itself.
Do you believe that Mr. Wheeler would need a
total knee replacement even if he did not
suffer from pigmented villondular [sic]
synovitis? I do believe he needs a total
knee replacement.
On January 2, 2001, Dr. Crickenberger was deposed.
He testified on direct examination that the extent of Wheeler's
PVN is significant and that this condition will naturally
progress. He testified that the PVN could progress to the
extent of requiring a total knee replacement. More
specifically, with respect to Wheeler, he could not state how
much of Wheeler's symptomatic progression was due to his
injuries and how much was due to the natural course of
progression of his PVN.
When asked if he could state that, absent the July 1998
accident, Wheeler would not need a total knee replacement, he
answered that he "could not state that to a medical certainty."
Dr. Crickenberger attributed the thickened synovial lining in
Wheeler's knee to "both the PVN and the injury." He elaborated
on his opinion regarding the causal relationship:
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Q: So his trauma or whatever trauma he had
sustained as a result of the fall in July of
1998 had subsided?
A: I don't think you can separate the two
completely. Certainly the trauma -- if I
can elaborate. Certainly the PVN, or
pigmented villus synovitis wasn't caused by
the trauma. For sure it was there. Had
documentation that it was there.
For sure the trauma exacerbates the
underlying condition and, of course, the
underlying condition is an ongoing
condition.
Q: It continues to degenerate?
A: Right, and how much worse it made it,
what rate it made things more rapid, I can't
tell you. I tell you with the positive
finding we had, tends to make you think
there probably was significant injury.
* * * * * * *
From that point on it's like taking a person
with arthritis and hitting them in the knee
with a hammer. The hammer didn't cause the
arthritis, but the condition flares up and
goes on.
On April 25, 2000, at the request of UPS, Dr. Powledge
conducted a medical evaluation and records review of Wheeler.
He concluded that no objective medical evidence established that
Wheeler sustained an additional injury to his left knee as a
result of his July 1998 fall. He stated his agreement with
Drs. Crickenberger and McCue that a total knee replacement was
needed. However, he opined that the need for the knee
replacement was due to Wheeler's PVN and to the fact that the
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condition had not responded to less drastic surgical
intervention or radiation treatments.
C. PROCEDURAL HISTORY
On July 1, 1998, Wheeler sustained a compensable injury to
his left knee. Benefits were paid pursuant to an award dated
July 27, 1999, until he returned to work on June 24, 1999. On
April 27, 2000, Wheeler filed a claim for benefits with the
Workers' Compensation Commission seeking authorization to
undergo a total knee replacement pursuant to Code § 65.2-603.
Following an October 19, 2000 hearing, Deputy Commissioner
Costa ruled that Wheeler's fall in 1998, "aggravated his
preexisting pigmented villonodular synovitis (PVN) and made a
total knee replacement necessary." UPS timely filed a notice of
appeal, and the full commission affirmed. UPS appeals that
decision.
II. ANALYSIS
UPS contends that no credible evidence supports the
commission's finding that the July 1, 1998 injury aggravated
Wheeler's pre-existing condition and necessitated a total knee
replacement. We disagree. Wheeler's treating physicians,
Drs. Crickenberger and McCue, were clear in their diagnoses that
the July 1, 1998 injury aggravated his pre-existing PVN
condition. An aggravation of a pre-existing condition is
compensable. See Southern Iron Works, Inc. v. Wallace, 16
Va. App. 131, 428 S.E.2d 32 (1993).
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On at least three occasions, Dr. Crickenberger stated that
the July 1998 injury aggravated Wheeler's underlying PVN. On
April 28, 1999, he responded to a questionnaire regarding the
relationship between Wheeler's July, 1998, left knee injury and
the pre-existing PVN.
1. Is the left knee pigmented villondular
synovitis causality [sic] related to the
slip and fall of 07-01-98 within reasonable
medical certainty?
Yes -- injury aggravated underlying
synovitis.
2. Is the industrial accident of the left
knee on 07-01-98 the major consequentially
[sic] cause of the villondular synovitis?
Yes -- synovitis preexisting injury was the
major aggravating cause.
On September 26, 2000, Dr. Crickenberger responded to a request
from Wheeler's attorney for clarification of answers provided in
the questionnaire.
[A]nswering your two questions on the last
page of your letter of 9/6/00.
1. The diagnosis of nodular synovitis of
left knee was first made clinically in 1982
as a "synovitis" but the pathology diagnosis
of nodular synovitis [reference to PVN
synovitis] was made on the pathologic report
of 8/5/83 [reference to left knee].
2. I do believe with a reasonable degree of
medical probability that the work accident
on 7/1/98 aggravated the underlying PVN, but
certainly did not cause the PVN synovitis.
Finally, in his January 2, 2001 deposition, Dr. Crickenberger
stated:
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Certainly the PVN, or pigmented villus
synovitis wasn't caused by the trauma. For
sure it was there. Had documentation that
it was there.
For sure the trauma exacerbates the
underlying condition and, of course, the
underlying condition is an ongoing
condition.
* * * * * * *
From that point on it's like taking a person
with arthritis and hitting them in the knee
with a hammer. The hammer didn't cause the
arthritis, but the condition flares up and
goes on.
Like Dr. Crickenberger, Dr. McCue was clear in his
diagnosis. On September 19, 2000, he responded to a medical
questionnaire.
[Q]: Do you believe within a reasonable
degree of medical probability that the
injury which Mr. Wheeler suffered to his
left knee on July 1, 1998 aggravated the
pigmented villondular [sic] synovitis?
[A]: The injury that Mr. Wheeler suffered
on 7-1-98 certainly aggravated the pigmented
villonodular synovitis, but no-one is
exactly sure what the originating cause of
the [PVN] cause [sic] itself.
Credible evidence in the record supports the commission's
finding that Wheeler's July 1, 1998 injury aggravated a
pre-existing compensable condition, necessitating a total left
knee replacement. "Decisions of the commission as to questions
of fact, if supported by credible evidence, are conclusive and
binding on this Court." Manassas Ice & Fuel Co., 13 Va. App.
227, 229, 409 S.E.2d 824, 826 (1991). "The fact that contrary
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evidence may be found in the record is of no consequence if
credible evidence supports the commission's finding." Id.
The decision of the commission is affirmed.
Affirmed.
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