Fisherman's Wharf of America v. Betty Wolfe ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
FISHERMAN'S WHARF OF AMERICA AND
VIRGINIA HOSPITALITY GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION*
v. Record No. 0188-01-1 PER CURIAM
MAY 22, 2001
BETTY B. WOLFE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William C. Walker; Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellants.
(Byron A. Adams, on brief), for appellee.
Fisherman's Wharf of America and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that (1) Betty B.
Wolfe's (claimant) left arm condition constituted a
change-in-condition rather than a new injury by accident and,
therefore, claimant was not required to provide notice to
employer of the left arm condition pursuant to Code
§ 65.2-600(D); and (2) claimant satisfied her burden of
providing such notice. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Accordingly, we summarily affirm the commission’s decision. See
Rule 5A:27.
Change-in-Condition vs. New Injury
A change in an employee's physical condition
that is compensable under Code § 65.2-708
includes, among certain other changes, any
"'progression, deterioration, or
aggravation'" of a previously compensated
injury. However, "a new and separate
accidental injury" may not be compensated as
a change in condition of a previous injury.
Thus, when an employee seeks compensation
under Code § 65.2-708, the employee must
prove that the change in condition is
"causally connected with the injury
originally compensated."
Southwest Virginia Tire, Inc. v. Bryant, 31 Va. App. 655, 660,
525 S.E.2d 563, 566 (2000) (citations omitted). Code § 65.2-708
defines a change in condition as "a change in physical condition
of the employee as well as any change in the conditions under
which compensation was awarded, suspended, or terminated which
would affect the right to, amount of, or duration of
compensation." "These changes include 'progression,
deterioration, or aggravation of the compensable condition . . .
appearance of new or more serious features [and] failure to
recover within the time originally predicted . . . .'"
Armstrong Furniture v. Elder, 4 Va. App. 238, 243, 356 S.E.2d
614, 616 (1987) (quoting 3 A. Larson, The Law of Workmen's
Compensation § 81.31(a) (1983)).
"To be a 'new injury,' the incident giving rise to the
aggravation must in itself, satisfy each of the requirements for
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an 'injury by accident arising out of . . . the employment.'"
First Federal Savings & Loan Ass'n v. Gryder, 9 Va. App. 60, 63,
383 S.E.2d 755, 757-58 (1989).
"The Commission's finding of fact that [a subsequent]
injury was not a new accident is binding on appeal if supported
by credible evidence." Board of Supervisors v. Martin, 3 Va.
App. 139, 142, 348 S.E.2d 540, 541 (1986).
The commission found that claimant's left arm condition
constituted a change-in-condition causally related to her July
31, 1997 compensable right hand injury and that no evidence
showed that claimant's left arm condition was caused by a new
accident. These findings are supported by credible evidence and
will not be disturbed on appeal. 1
"When a primary injury under the Workmen's Compensation Act
is shown to have arisen out of the course of the employment,
every natural consequence that flows from that injury is
compensable if it is a direct and natural result of a primary
injury." Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99
(1977). In Bartholow Drywall Co. v. Hill, 12 Va. App. 790, 407
S.E.2d 1 (1991), we held "that the doctrine of compensable
1
The sole issue raised by employer on appeal is whether the
commission erred in finding that the left arm condition
constituted a change-in-condition rather than a new injury.
Employer does not challenge the commission's finding that the
left arm condition resulting from overuse was causally related
to the compensable July 31, 1997 right extremity injury.
Accordingly, that finding is binding and conclusive upon us on
appeal.
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consequences is applicable both to aggravation of a prior
compensable injury and a new injury for the purpose of
establishing compensability of the subsequent injury." Id. at
797, 407 S.E.2d at 5. In addition, we have recognized that the
law of compensable consequences is applicable to a gradually
incurred injury. Allen & Rocks, Inc. v. Briggs, 28 Va. App.
662, 670-72, 508 S.E.2d 335, 338-40 (1998) (knee pain caused by
gait deviations resulting directly from compensable back injury
constituted compensable consequence of original back injury).
The medical records and claimant's testimony proved that
her left arm symptoms resulting from overuse of that arm due to
her favoring her previously injured right extremity flowed as a
natural consequence of the compensable right hand injury.
Moreover, the record is devoid of any credible evidence that the
left arm condition was caused by a new and separate accidental
injury. Accordingly, the commission did not err in concluding
that the left arm condition constituted a change-in-condition,
for which no notice was required under Code § 65.2-600(D),
rather than a new injury by accident. See Whitten v. Mead
Paperboard Prods., 4 Va. App. 182, 185, 355 S.E.2d 349, 350
(1987) (notice provisions of Code § 65.1-88 (now
Code § 65.2-600(D)) apply to original application for benefits
not to change-in-condition application).
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Sufficiency of Notice
Because we affirm the commission's holding that claimant's
left arm condition constituted a change-in-condition related to
her July 31, 1997 injury by accident, we need not address the
second issue raised by employer on appeal.
For the reasons stated, we affirm the commission's
decision.
Affirmed.
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