Fred L. Myers v. Madison Wood Preservers and Employers Preferred Insurance Company ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Alston and Senior Judge Annunziata
Argued at Richmond, Virginia
FRED L. MYERS
MEMORANDUM OPINION * BY
v. Record No. 2338-11-2 JUDGE ROSEMARIE ANNUNZIATA
JULY 3, 2012
MADISON WOOD PRESERVERS AND
EMPLOYERS PREFERRED INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Christopher R. Johnson (Larry L. Miller; Miller Law Group, P.C., on
briefs), for appellant.
Jesse F. Narron (Sean J. Murphy; PennStuart, on brief), for
appellees.
Fred L. Myers (claimant) appeals from an October 21, 2011 decision of the Workers’
Compensation Commission (the commission) reversing the deputy commissioner’s decision and
finding that claimant failed to present sufficient evidence to prove a compensable injury by accident
to his left knee. On appeal, claimant contends the commission erred by 1) finding the evidence was
insufficient to demonstrate he sustained a compensable knee injury as a result of an April 29, 2010
accident occurring on his employer’s conveyor belt, 2) failing to provide a reasonable basis in the
record to reverse the deputy commissioner’s determination regarding claimant’s credibility, and
3) finding claimant’s return to work following the April 29, 2010 accident could also have caused
his knee condition. We affirm the decision of the commission.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
On appeal, we view the “evidence and all reasonable inferences that may be drawn from that
evidence” in the light most favorable to the party prevailing before the commission. Artis v.
Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).
So viewed, the evidence showed claimant worked for Madison Wood Preservers (employer)
as a maintenance technician and performed maintenance tasks throughout employer’s lumber yard.
On April 29, 2010, while claimant was standing on a conveyor belt to replace a broken part on a
vehicle, a co-worker turned on the conveyor belt causing claimant to fall. On May 3, 2010,
claimant visited Dr. J. Yates Sealander complaining of pain in his left ankle and foot. He did not
report an injury to his knee. Dr. Sealander diagnosed claimant with foot strain and concluded he
was not disabled for work. On May 13, 2010, claimant filed an accident report with the commission
and stated only that he had injured his foot in the workplace accident. Claimant continued to work
following the accident.
Claimant became aware of an injury to his knee a few weeks after the April 29, 2010
accident. He stated that his “knee just started hurting out of the blues [sic]” and further explained
that by June 10, 2010, pain and swelling in his knee prevented him from standing. Claimant sought
treatment with Dr. Robert Rutkowski, an orthopedic surgeon. On June 15, 2010, Dr. Rutkowski
diagnosed claimant with a medial meniscus tear and osteoarthritis. Two days later, Dr. Rutkowski
performed arthroscopic surgery on claimant’s knee. On September 27, 2010, claimant sought a
second opinion from Dr. James Browne, “complaining of approximately 1 year worth of left
knee pain.” On November 3, 2010, claimant underwent surgery for a total knee replacement.
On August 27, 2010, in his claim for benefits, claimant stated that he injured his left knee
the week of May 17, 2010. He sought wage loss benefits beginning June 10, 2010 and payment for
medical bills. The deputy commissioner ruled that claimant suffered a compensable injury to his
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left knee as claimed and that his medical condition was causally related to the April 29, 2010
compensable injury. At the hearing, claimant testified that, prior to the April 29, 2010 accident, he
did not experience any problem with his left knee that prevented him from working at his job. The
deputy commissioner awarded temporary total disability benefits beginning June 10, 2010. On
review, the full commission reversed, finding the evidence failed to prove claimant’s knee condition
was causally related to the workplace injury. This appeal followed.
ANALYSIS
Although claimant lists three assignments of error, all three essentially address the same
issue – whether claimant’s testimony and the relevant medical records constituted sufficient
evidence to support a finding of compensability for the left knee injury. Claimant contends the
commission erred in its finding the evidence he presented was not sufficient to satisfy his burden
of proof.
“One seeking compensation retains the burden of proving by a preponderance of the
evidence that he sustained a compensable injury.” Williams v. Auto Brokers, 6 Va. App. 570,
571-72, 370 S.E.2d 321, 322 (1988) (citing Hercules, Inc. v. Stump, 2 Va. App. 77, 79, 341
S.E.2d 394, 395 (1986). “‘Injury’ means only injury by accident arising out of and in the course
of employment.” Code § 65.2-101. “An ‘injury by accident’ requires proof of ‘(1) an
identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden
mechanical or structural change in the body; and (4) a causal connection between the incident
and the bodily change.’” Ogden Aviation Servs. v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d 756,
758 (2000) (quoting Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181
(1990)).
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In reviewing the decision of the deputy commissioner, the full commission concluded
that claimant failed to meet his burden of proving a causal connection between the workplace
accident and his knee condition. We agree with the full commission and affirm.
“Causation is an essential element which must be proven by a claimant in order to receive
an award of compensation for an injury by accident . . . .” AMP, Inc. v. Ruebush, 10 Va. App.
270, 274, 391 S.E.2d 879, 881 (1990). “Causation of a medical condition may be proved by
either direct or circumstantial evidence, including medical evidence or ‘the testimony of a
claimant.’” Farmington Country Club v. Marshall, 47 Va. App. 15, 26, 622 S.E.2d 233, 239
(2005) (quoting Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154
(1996)). However, “[c]ausation is usually proven by medical evidence,” Clinch Valley Med. Ctr.
v. Hayes, 34 Va. App. 183, 192, 538 S.E.2d 369, 373 (2000), and, like all matters of evidence, it
is “‘subject to the commission’s consideration and weighing,’” Cridlin, 22 Va. App. at 176, 468
S.E.2d at 154 (quoting Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d
213, 215 (1991)). Because the commission’s determination of causation is a finding of fact, see
Henrico Cnty Sch. Bd. v. Etter, 36 Va. App. 437, 443, 552 S.E.2d 372, 375 (2001), those
findings “are conclusive and binding on this Court if supported by credible evidence,” R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 213, 390 S.E.2d 788, 789 (1990). When the
record is reviewed in this light, the existence of contrary evidence has no bearing on the result.
See Wagner Enters, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citing
Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989)).
In this case, no medical evidence supports claimant’s contention that the April 29, 2010
accident caused his knee condition. In fact, the medical records suggest the contrary. When
claimant first sought medical attention following the accident, his complaint was limited to his
foot and ankle injury. He did not experience knee problems until a “couple of weeks” after the
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accident and, in making his initial claim, claimant stated his knee began to hurt “out of the blues
[sic].” When claimant later sought medical treatment for his knee pain, he reported no history of
the work accident. No health care provider related the knee condition to the April 29, 2010
accident, the consistent medical diagnosis being one of osteoarthritis and other non-work-related
problems for which claimant ultimately underwent a knee replacement. Additionally, before
undergoing the knee replacement surgery, claimant sought a second opinion from Dr. James
Browne just five months after the workplace accident “complaining of approximately 1 year
worth of left knee pain.” There was also evidence in the record that claimant had returned to
work before experiencing any knee pain and that his work required him to kneel and crawl. 1
Given the spectrum of potential non-work-related causes of claimant’s knee injury in evidence
and the absence of any medical evidence supporting claimant’s testimony that his knee problems
were caused by the work accident, reasonable minds could conclude that the claimant had failed
to satisfy his burden of proof on the issue of causation. “[W]e are bound by the commission’s
findings of fact so long as ‘there was credible evidence presented such that a reasonable mind
could conclude that the fact in issue was proved,’ even if there is evidence in the record that
would support a contrary finding.” Artis, 45 Va. App. at 83-84, 608 S.E.2d at 517 (quoting
Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988)). Cf.
Turcios v. Holiday Inn Fair Oaks, 24 Va. App. 509, 517-18, 483 S.E.2d 502, 506 (1997)
1
Claimant’s assertion that the commission erred by considering his return to work
following his accident as a potential alternative cause of his knee condition is without merit. The
record indicated claimant returned to work in his full capacity and that his work routinely
included crawling and kneeling. Claimant’s initial complaint and his early medical records
indicate only his foot and ankle were injured in the April 29, 2010 accident. The commission’s
note that the return to work provided a possible alternative explanation amounts to nothing more
than a statement that claimant had failed to prove by a preponderance of the evidence that the
workplace accident caused his later knee condition.
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(reversing the commission’s denial of benefits where the medical evidence established a causal
relationship and no evidence suggested an intervening cause of the disability).
Claimant contends that in reaching its conclusions, the commission “necessarily
exclude[d] [his] uncontroverted testimony” in contravention of well-established principles
governing the reversal of the deputy commissioner’s credibility determinations. See, e.g.,
Turcios, 24 Va. App. at 515, 483 S.E.2d at 505 (noting the commission may not arbitrarily
reverse the credibility findings of the deputy commissioner). However, as claimant
acknowledges, “the commission nowhere expressly states that it . . . found [claimant] lacking in
credibility.” Rather, it simply concluded that claimant’s testimony on the issue of causation was
unsupported by the other evidence in the case and, in itself, was insufficient to establish
causation. We acknowledge that the commission “‘was free to credit claimant’s testimony at the
hearing as a basis for its finding of causation.’” Strictly Stumps, Inc. v. Enoch, 33 Va. App. 792,
795, 537 S.E.2d 19, 21 (2000) (quoting Cridlin, 22 Va. App. at 177, 468 S.E.2d at 155).
However, the commission is not required to accept that testimony in making its finding or
necessarily conclude that claimant’s testimony, in itself, establishes causation, particularly when
other evidence suggests otherwise. As pointed out in Cridlin, “‘in many instances, it may be
impossible to form a judgment on the relation of the employment to the injury, or relation of the
injury to the disability, without analyzing in medical terms what the injury or disease is.’”
Cridlin, 22 Va. App. at 177, 468 S.E.2d at 154 (quoting 2B Arthur Larson, The Law of
Workmen’s Compensation § 79.51(a) (1995)). This case is one such instance.
Contrary to claimant’s contention that the commission’s decision is antithetical to the
remedial purposes of the Workers’ Compensation Act and the liberal construction it should be
given to advance that purpose, “[t]hat liberality, however, has its limits.” Clinchfield Coal Co. v.
Reed, 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003). We acknowledge the humanitarian and
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beneficent purpose of the Act that is served by a liberal construction favoring the worker, but
these underlying policy considerations do not require that every claim asserted be allowed. See
Bowden v. Newport News Shipbuilding, 11 Va. App. 683, 688, 401 S.E.2d 884, 887 (1991).
The burden of proof the commission applied in this case to establish causation is consistent with
these principles.
In short, because we find the commission’s finding that claimant’s knee condition was
not causally related to the accident is based on credible evidence, its finding is binding on this
Court on appeal and we affirm.
Affirmed.
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