Eugenia L Mawson v. Rappahannock General Hosp, etal ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
EUGENIA L. MAWSON
MEMORANDUM OPINION* BY
v. Record No. 0873-02-2 JUDGE JAMES W. BENTON, JR.
APRIL 22, 2003
RAPPAHANNOCK GENERAL HOSPITAL AND
RECIPROCAL OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert L. Flax (Flax & Stout, on briefs), for
appellant.
Karen A. Gould (Angela C. Fleming; Crews &
Hancock, P.L.C., on brief), for appellees.
The Workers' Compensation Commission denied Eugenia L.
Mawson's change-in-condition application for permanent and total
incapacity benefits. Mawson contends the commission erred in
ruling (1) that she was not disabled by her work injury, (2)
that she failed to prove a quantifiable loss of capacity of both
legs, and (3) that she did not suffer total and permanent
disability from her work injury. For the reasons that follow,
we affirm the commission's denial of Mawson's claim for
benefits.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
On February 19, 1988, Eugenia L. Mawson, a registered nurse
employed by Rappahannock General Hospital, sustained a back
injury while assisting a patient. The commission found that
Mawson suffered an acute lumbosacral strain and that her
physicians diagnosed post-traumatic radicular neuropathy. The
commission entered an award for the payment of temporary total
disability benefits beginning February 26, 1988.
Following a 1996 hearing on the Hospital's
change-in-condition application, the deputy commissioner found
that "Mawson remains partially disabled as a result of the back
pain caused by the work injury." The deputy commissioner also
found "that Mawson is additionally disabled due to her mental
condition, specifically her multiple personality disorder," but
that "[i]t is questionable whether this mental disability was
caused by the work injury." The deputy commissioner did not
further address the issue of her mental disability because of
the finding that "Mawson was partially disabled due to her back
condition." On review, the commission affirmed the deputy
commissioner's finding that Mawson continued to be partially
disabled, but the commission also found "that whereas [Mawson]
has experienced anxiety and depression related to the chronic
[back] pain, her main psychiatric condition is her multiple
personality disorder, which is not related to the occupational
injury."
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The record establishes that Mawson received compensation
for various periods of temporary total and temporary partial
disability for her back injury through September 18, 1997. In
1999, however, the commission denied Mawson's request for a
panel of psychiatrists. The commission found that "there is no
convincing explanation for the necessity of pain management
. . . [because, the evidence] failed to link [Mawson's]
psychiatric problems to the work-related injury." The
commission further found that "[n]o established authorized
treating physician has proposed or supported the request for
pain management."
In 2001, Mawson filed an application for change in
condition, which alleged permanent and total disability due to
the loss of use of her legs. The commission denied Mawson's
application. This appeal arises from that decision.
II.
Our review of the commission's decision is governed by well
established principles.
"On appeal, we view the evidence in the
light most favorable to . . . the party
prevailing before the commission." Great
Eastern Resort Corp. v. Gordon, 31 Va. App.
608, 610, 525 S.E.2d 55, 56 (2000). "A
claimant must prove [her] case by a
preponderance of the evidence." Bergmann v.
L & W Drywall, 222 Va. 30, 32, 278 S.E.2d
801, 802 (1981); see Marketing Profiles,
Inc. v. Hill, 17 Va. App. 431, 433, 437
S.E.2d 727, 729 (1993) (en banc).
Furthermore, "[d]ecisions of the commission
as to questions of fact, if supported by
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credible evidence, are conclusive and
binding on this Court." Allen & Rocks, Inc.
v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998). Evidence to the contrary
in the record "is of no consequence if there
is credible evidence to support the
commission's findings." Russell Loungewear
v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824,
826 (1986). The consideration and weight to
be given to the evidence, including medical
evidence, are within the sound discretion of
the commission. See Waynesboro Police v.
Coffey, 35 Va. App. 264, 268, 544 S.E.2d
860, 861 (2001); Hungerford Mechanical Corp.
v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d
213, 215 (1991).
Pro-Football, Inc. v. Paul, 39 Va. App. 1, 10-11, 569 S.E.2d 66,
71 (2002).
III.
In pertinent part, Code § 65.2-503 provides as follows:
C. Compensation shall be awarded pursuant
to § 65.2-500 for permanent and total
incapacity when there is:
1. Loss of both hands, both arms, both
feet, both legs, both eyes, or any two
thereof in the same accident;
2. Injury for all practical purposes
resulting in total paralysis, as determined
by the Commission based on medical evidence;
or
3. Injury to the brain which is so severe
as to render the employee permanently
unemployable in gainful employment.
D. In construing this section, the
permanent loss of the use of a member shall
be equivalent to the loss of such member,
and for the permanent partial loss or loss
of use of a member, compensation may be
proportionately awarded. . . .
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Applying this statute, the Supreme Court has consistently
held that
"[t]he phrases 'total and permanent loss' or
'loss of use' of a leg do not mean that the
leg is immovable or that it cannot be used
in walking around the house, or even around
the block. They do mean that the injured
employee is unable to use it in any
substantial degree in any gainful
employment."
Georgia-Pacific Corp. v. Dancy, 255 Va. 248, 252, 497 S.E.2d
133, 135 (1998) (quoting Virginia Oak Flooring Co. v. Chrisley,
195 Va. 850, 857, 80 S.E.2d 537, 541 (1954)). Furthermore, we
have held that "the proper inquiry[, when applying the statute,]
was whether the rated loss of use in [the employee's] legs
rendered both of [the employee's] legs effectively unusable."
Georgia-Pacific Corp. v. Dancy, 24 Va. App. 430, 437, 482 S.E.2d
867, 871 (1997), aff'd, 255 Va. 248, 497 S.E.2d 133 (1998). See
also Pantry Pride-Food Fair Stores, Inc. v. Backus, 18 Va. App.
176, 180, 442 S.E.2d 699, 702 (1994) (holding that "evidence of
a rated loss of twenty-five percent of both legs, . . . [and]
evidence of . . . incapacity for employment, supports the
commission's finding that the employee is permanently
unemployable as a consequence of her loss of function in both
legs").
A.
In denying Mawson's claim, the commission found as follows:
The deputy commissioner denied the . . .
Claim for permanent and total benefits based
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on the failure of the evidence to "support a
finding that [Mawson] has a quantifiable
disability of the legs and that the
disability renders her incapable of gainful
employment." . . .
The medical evidence showed that [Mawson]
has complained of pain in her right leg
since the accident. The evidence did not
show that [she] had an orthopaedic or
neurological problem that would cause this
pain, and it remained largely unexplained.
Dr. [Vladimir] Gefon was not able to
attribute [Mawson's] pain to any objective
condition, instead diagnosing her generally
with "back pain, legs pain." Thus, the loss
of use to [Mawson's] legs could not based on
any objective criteria, but only on pain.
Dr. [Robert] Groble opined that [Mawson's]
pain complaints were valid, and we have no
reason to conclude that [her] pain is
factitious. We are not persuaded, however,
that the evidence showed that [she] lost all
use of her right leg.
As for [Mawson's] left leg, the evidence
clearly did not show a 100% loss of use. If
anything, the evidence showed that [she]
suffered occasional pain in her left leg.
[Mawson] testified that her left leg felt
"heavy," but did not describe left-leg pain.
There was no evidence of any orthopaedic or
neurological problem with her left leg.
Throughout [Mawson's] treatment since the
accident, her pain complaints have generally
involved her back and right leg, not her
left leg. Thus, we do not believe that
Dr. Groble's opinion that her left leg was
100% disabled was persuasive, nor can we
find any medical evidence supporting a
specific loss of use of the left leg because
of the February 1988 accident.
Credible evidence supports these findings. Although
Dr. Groble, a psychiatrist, "rated [Mawson's] loss of legs at
100% in regard to her ability to work" and reported she is
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"unable to work in any gainful employment," he indicated this
condition flowed from "chronic intractable back pain" and gave
no ratable loss that could be separately identified to each leg.
The commission weighed his report along with other evidence and
was "not persuaded . . . that the evidence showed that [Mawson]
lost all use of her right leg" or that "any evidence support[ed]
a specific loss of use of the left leg." The commission was
aware that Dr. Groble treats Mawson for her depression and
mental disorders. Furthermore, the record contains no
indication Dr. Groble ever gave Mawson a physical examination
or treated her physical conditions except by psychiatry.
Dr. Vladimir Gefon indicated Mawson's "legs make her
disabled due to her pain, weakness, and instability" and opined
that she "sustained a permanent injury as a direct result of the
[work] accident." In that same report, however, he listed
various restrictions Mawson should observe and said "[s]he will
need to keep [these] restrictions in mind for any job she would
engage in the future." He has neither opined that she is
totally disabled nor quantified a percentage of disability.
Indeed, the deputy commissioner found that Dr. Gefon's report
"implies that [Mawson] is capable of gainful employment."
Affirming the deputy commissioner's decision, the commission
also referenced Dr. Gefon's indication of the restrictions on
Mawson's future employment.
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The commission was persuaded by Dr. Michael S. Scharf's
reports. He opined that Mawson "has a chronic pain syndrome"
but that he "cannot ascribe any real organic problem in her
spine to account for the amount of pain . . . she is having."
Dr. Scharf reviewed Dr. Groble's reports and indicated
Dr. Groble has not disclosed any anatomical reasons to support
his "assumption" that Mawson's inability to work is due to "her
loss of legs." Contrary to Dr. Groble's reports, Dr. Scharf
opined that nothing "from an anatomical standpoint, preclude[s]
. . . Mawson from being gainfully employed" and also noted that
she has "a lot of psychiatric dysfunction." He further opined
that, "[d]ue to the longevity and nature of her pain, she has a
five percent permanent anatomical impairment."
The commission was entitled to resolve disputed medical
evidence and to draw reasonable inferences from the evidence it
found to be more persuasive. Hawks v. Henrico County School
Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). A
corollary to that rule is "[i]f there is evidence or reasonable
inference that can be drawn from the evidence to support the
Commission's findings, they will not be disturbed by this Court
on appeal, even though there is evidence in the record to
support contrary findings of fact." Caskey v. Dan River Mills,
Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). We hold
that credible evidence supports the commission's findings that
the evidence did not prove Mawson has a quantifiable disability
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in her legs or is incapable of gainful employment as a result of
her back injury.
B.
After reviewing the extensive medical evidence and the
record in this case, the commission ruled that it "has
specifically determined in prior opinions that [the Hospital]
was not responsible for treatment of [Mawson's] mental and
emotional problems." Those rulings have never been appealed
except as the issue is indirectly raised here.
The commission further held as follows:
[W]e believe that the evidence established
that [Mawson] was unable to engage in
gainful employment. She suffers from
several conditions, any one of which would
be sufficient to cause her to be unable to
work. She has been hospitalized several
times for various problems, including chest
pain and depression. She has received
emergency treatment on numerous occasions
for chest pain and migraine headaches. As
noted . . . by . . . a recent primary care
physician, [Mawson] has "a very complex
medical history."
We do not believe, however, that it is
fair to conclude that the back injury
suffered by [Mawson] in February 1988 caused
[her] inability to engage in gainful
employment. The incomplete medical records
indicated that [Mawson] had a serious left
knee injury in 1982, suffered from chronic
migraine headaches for many years preceding
1988, and suffered from severe mental and
emotional problems since childhood. We
recognize that [Mawson] was able to function
at a high enough level to become a
registered nurse and work for many years in
that capacity before the accident. Since
the accident, the medical evidence showed
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that [she] has largely been unable to work
and in fact has been confined to a hospital
on several occasions.
* * * * * * *
[T]he evidence did not show that the
combination of [Mawson's] leg problems and
her inability to work resulted in her being
permanently and totally disabled as a result
of the February 1988 accident. Under the
Act, an employer is held responsible for the
loss suffered by an employee because of a
compensable injury by accident. Without
looking at a complete picture of [Mawson's]
medical history before the accident, it
appears that the February 1988 accident
marked a radical turning point in [her]
life. When considering what incomplete
history of treatment before February 1998
that was before us, however, a different
picture emerges. We do not believe that
[Mawson's] complicated and extensive medical
problems fairly can be traced to the
February 1988 accident. At best, [she]
continues to be partially disabled because
of the February 1988 accident, and thus has
not proved that the accident has resulted in
permanent and total disability.
Credible evidence supports these findings. Although
Dr. Groble reported that Mawson had a "history of psychiatric
problems that had its onset subsequent to a work related back
injury in 1988," the commission found from other evidence in the
record that Mawson's psychiatric disability predated her work
injury. That finding is supported by the opinions of Dr. Paul
Mansheim and Dr. Kathleen Giles. Moreover, the evidence recited
earlier in this opinion supports the finding that Mawson has a
partial disability attributable to her work injury.
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"Medical evidence is not necessarily
conclusive, but is subject to the
commission's consideration and weighing."
Furthermore, on appeal, we "[d]o not retry
the facts, reweigh the preponderance of the
evidence, or make [our] own determination of
the credibility of the witnesses."
Marriott Int'l, Inc. v. Carter, 34 Va. App. 209, 215-16, 539
S.E.2d 738, 741 (2001) (citations omitted).
For these reasons, we affirm the commission's denial of
Mawson's application for a change in condition.
Affirmed.
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