E.I. Dupont, etc. v. Frederick Jackson Mize, Jr. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
E. I. DUPONT DE NEMOURS & COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0059-96-2 JUDGE JERE M. H. WILLIS, JR.
JUNE 25, 1996
FREDERICK JACKSON MIZE, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Wood W. Lay (Hunton & Williams, on briefs),
for appellant.
Peter McIntosh (Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., on brief), for
appellee.
E. I. DuPont De Nemours & Co. (DuPont) appeals from a
decision of the Virginia Workers' Compensation Commission
awarding compensation to Frederick Jackson Mize. DuPont contends
that the commission erred (1) in finding that Mize's present
disability is related to his November 7, 1993 injury by accident
and (2) in finding as a matter of law that the "two causes rule"
supports DuPont's liability. We find no error and affirm the
judgment of the commission.
Mize worked as a spinning machine operator at DuPont's
Martinsville, Virginia plant. On November 7, 1993, he was
injured when the flex back of the chair in which he was sitting
broke, throwing him to the floor. He landed on his head, neck,
and right shoulder.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On October 28, 1993, prior to his injury, Mize had been
diagnosed with moderate degenerative disc disease by Dr. Michael
G. Wenkstern, who had prescribed physical therapy and recommended
that Mize limit his activities "according to symptoms." Mize
performed his regular job until November 7, 1993.
On November 9, Mize returned to Dr. Wenkstern and has
continued under Dr. Wenkstern's care. Dr. Wenkstern has
consistently diagnosed a cervical strain superimposed on the
degenerative disc disease. Mize is also being treated by Dr.
David L. Kelly, Jr., a neurosurgeon. On January 16, 1995, in
response to a question by Mize's counsel, Dr. Kelly stated that
"he understood the claimant had problems that preexisted his work
accident, but that these were aggravated by the fall." He went
on to state, "I believe that his symptoms between March and
August [1994] are primarily related to his injury of November 7."
At DuPont's request, Mize was examined by Dr. Powledge, a
specialist in occupational medicine. On October 17, 1994, Dr.
Powledge reported that he believed Mize was exaggerating his
symptoms. Dr. Powledge also reviewed Dr. Wenkstern's medical
records and reported that, in his opinion, the records suggested
that Mize "had reached his pre-injury status."
The deputy commissioner held that Mize sustained a
compensable injury by accident when he fell out of the chair at
work and awarded him medical benefits. However, the deputy
commissioner held that Mize had not met his burden of proving by
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a preponderance of the evidence that his current symptoms were
causally related to his compensable injury by accident.
The full commission reversed the holding of the deputy
commissioner, finding that Mize had proved that his current
disability was causally related to his compensable injury by
accident. The commission based its finding on the medical
evidence, consisting of the opinions of Mize's treating
physicians, Dr. Wenkstern and Dr. Kelly, as well as Mize's own
testimony.
The commission's findings of fact will not be disturbed on
appeal when supported by credible evidence. Crisp v. Brown's
Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916,
916 (1986). Credible evidence supports the commission's finding
that Mize's current disability is causally related to his injury
by accident. "'[T]he employer takes the employee as he is and if
the employee is suffering some physical infirmity, which is
aggravated by an industrial accident, the employer is responsible
for the end result of the accident.'" Kemp v. Tidewater Kiewit,
7 Va. App. 360, 363, 373 S.E.2d 725, 726 (1988) (quoting McDaniel
v. Colonial Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d
225, 228 (1986) (citation omitted)). "'When an injury sustained
in an industrial accident accelerates or aggravates a preexisting
condition . . . disability resulting therefrom is compensable
under the Workers' Compensation Act.'" Id. (quoting Ohio Valley
Construction Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555
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(1985) (citations omitted)).
The commission based DuPont's liability for Mize's current
condition on the "two causes" rule. "Under the 'two causes' rule
if a disability has two causes, one related to employment and one
unrelated, benefits are allowed." Shelton v. Ennis Business
Forms, Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985)
(citation omitted). We cannot say as a matter of law that the
commission erred in applying the "two causes" rule. The evidence
clearly shows that Mize's current disabling condition is the
result of a compensable cause, the compensable injury by
accident, and a non-compensable cause, the pre-existing
degenerative disc disease. Both Dr. Wenkstern and Dr. Kelly
opined that Mize's current condition was an aggravation of his
degenerative disc disease caused by the November 7, 1993 injury
by accident.
The judgment of the commission is affirmed.
Affirmed.
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