Ogden Aviation Services v. James Jackson ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
OGDEN AVIATION SERVICES AND
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA MEMORANDUM OPINION*
PER CURIAM
v. Record No. 2560-02-4 FEBRUARY 4, 2003
JAMES JACKSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William H. Schladt; Ward & Klein, Chartered,
on brief), for appellants.
(Andrew S. Kasmer; Chasen & Boscolo,
Chartered, on brief), for appellee.
Ogden Aviation Services and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that James Jackson (claimant) proved
(1) he sustained a compensable change in condition on November
1, 2001, causally related to his compensable June 30, 1999
injury by accident; (2) his disability after November 1, 2001
was causally related to the June 30, 1999 compensable injury by
accident; and (3) he was entitled to a change in treating
physicians. Upon reviewing the record and the parties' briefs,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27. 1
I. and II.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that claimant proved he sustained a compensable
change in condition on November 1, 2001, rather than a new
injury by accident, the commission found as follows: 2
1
On appeal, claimant contends employer waived its
assignments of error because it failed to file a written
statement on review before the full commission. On review, the
commission recognized employer's failure to file a written
statement or to notify the commission that one would not be
filed. The commission ruled that employer's assignments of
error were, therefore, waived and abandoned. However, the
commission addressed the merits of whether the evidence proved
that claimant sustained a new injury by accident on November 1,
2001 or whether he sustained a change in condition causally
related to his compensable June 30, 1999 injury by accident.
Therefore, we will address that issue on appeal. The commission
did not address the issue of whether claimant was entitled to a
change in treating physicians and, therefore, we will not
address it on appeal. See Rule 5A:18.
2
Contrary to employer's assertions in its brief, the full
commission did not conclude that claimant sustained a new injury
by accident on November 1, 2001. Rather, the full commission
concluded that on November 1, 2001, claimant sustained an
aggravation of his June 30, 1999 compensable injury and that the
evidence did not support a finding of a new sudden mechanical or
structural change in claimant's body.
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[W]e agree with the Deputy Commissioner's
conclusion that the claimant's current
disability and medical treatment result from
an aggravation of the original work
accident. The claimant testified credibly
that he continued to suffer exacerbations of
symptoms on a frequent basis after he
returned to work. The exacerbation on
November 1, 2001, was similar to the other
exacerbations when the claimant worked,
except perhaps that the pain was worse and
did not go away like it usually did. We
find no persuasive evidence of a new sudden
mechanical or structural change in his body,
and find that he suffered an aggravation of
his pre-existing work injury. He has
remained totally disabled since November 1,
2001, as a result of that aggravation, and
has therefore proved a change in condition.
Claimant's testimony and Dr. William Dorn's medical records
provide ample credible evidence to support the commission's
finding that claimant sustained no new sudden mechanical or
structural change in his body, rather he sustained an
aggravation of his June 30, 1999 compensable injury. That
credible evidence also supports the commission's finding that
claimant remained totally disabled since November 1, 2001 as a
result of an aggravation of his June 30, 1999 compensable
injury.
Claimant testified that although he worked his regular job
from April 2000 until November 1, 2001, he continued to suffer
from ongoing back pain during that entire time period. He
testified that he never fully recovered before November 1, 2001.
He stated that he experienced "cramps" and "twitches" in his
back during that time period at least three to four times per
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week. Claimant admitted that the "twitch" and "cramp" he felt
on November 1, 2001, while lifting a hose, were similar to the
cramps he had felt since returning to work in April 2000.
Dr. Dorn opined in his November 29, 2001 report that claimant
"sustained injuries to the lower back in 1999 and aggravated the
condition with his continued work and an incident on November 1,
2001." Dr. Dorn's medical records established that claimant
remained totally disabled after November 1, 2001.
Because the commission's findings are supported by credible
evidence, we will not disturb them on appeal. Accordingly, we
affirm the commission's decision.
Affirmed.
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