Fairfax County v. Scott Halisky ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, Ortiz and Senior Judge Clements
Argued by videoconference
FAIRFAX COUNTY
MEMORANDUM OPINION* BY
v. Record No. 1388-22-4 JUDGE DANIEL E. ORTIZ
JUNE 27, 2023
SCOTT HALISKY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Robert M. Hardy, Assistant County Attorney (Elizabeth D. Teare,
County Attorney, on brief), for appellant.
James E. Swiger (The Law Office of James E. Swiger, PLLC, on
brief), for appellee.
Fairfax County appeals a decision of the Virginia Workers’ Compensation Commission
awarding Scott Halisky temporary total disability benefits, beginning November 17, 2020, and
continuing until conditions justify a modification. Fairfax County argues that the Commission erred
in finding that: (1) Halisky’s disability—starting on November 17, 2020—was a compensable
consequence of an earlier work accident and (2) was not attributable to his intentional conduct.
Because the Commission’s factual findings are supported by credible evidence and medical
testimony, we find no error and affirm the decision of the Commission.
BACKGROUND
“On appeal from a decision of the Workers’ Compensation Commission, the evidence
and all reasonable inferences that may be drawn from that evidence are viewed in the light most
*
This opinion is not designated for publication. See Code § 17.1-413.
favorable to the party prevailing below.” Anderson v. Anderson, 65 Va. App. 354, 361 (2015)
(quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83 (2005) (en banc)).
In 2019, Halisky, a firefighter and EMT, filed a claim for benefits, alleging a
compensable injury to his left shoulder that occurred when he was lifting a stretcher from an
ambulance. Halisky’s post-injury MRI revealed small partial tears with moderate underlying
tendinosis, a SLAP tear, and osteoarthritic changes. In February 2019, Dr. Branche performed
arthroscopic surgery on Halisky’s shoulder. Halisky continued to feel pain in his shoulder, and
Dr. Branche referred Halisky to Dr. Lovallo for follow-up care.
Fairfax County accepted the injury as compensable, and the Commission awarded
Halisky temporary total disability benefits in the amount of $1,082 per week beginning January
24, 2019, as well as medical benefits. In January 2020, Drs. Lovallo and Branche both released
Halisky to return to work as a firefighter and EMT. Halisky returned to his pre-injury work on
January 28, 2020. The parties agreed to terminate Halisky’s temporary total disability benefits,
effective January 27, 2020, even though he continued to suffer from shoulder pain following his
return to work.
On November 19, 2020, Halisky filed an additional claim for benefits, seeking an award
of temporary total disability benefits starting November 17, 2020, as he claimed that he “fell (not
at work) onto injured left shoulder, more susceptible to injury, and sustained aggravation of left
shoulder injury.” Halisky alleged that “this [wa]s a compensable consequence” of his original
injury.
Halisky sustained his November 17, 2020 injury while on vacation in Florida, when he
fell on a fishing boat and landed on his left shoulder. Upon his return from Florida, Halisky
underwent an MRI. Halisky saw Dr. Lovallo in follow-up to the MRI. Dr. Lovallo found that
Halisky’s MRI revealed “left shoulder glenohumeral joint arthritis.” Dr. Lovallo found that
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Halisky did not suffer a new injury, but “re-aggravated his left shoulder due to pre-existing
glenohumeral joint arthritis.”
On January 28, 2021, upon Fairfax County’s request to complete a questionnaire,
Dr. Lovallo opined that Halisky’s arthritis was pre-existing to the work injury. Dr. Lovallo
denied that Halisky had “recover[ed] from the work injury and then aggravate[d] the pre-existing
arthritis in an off work incident.” On April 8, 2021, Dr. Lovallo answered additional questions
from Fairfax County to a reasonable degree of medical certainty. He stated that Halisky’s
diagnosis was “arthritis left shoulder” and that his January 2019 accident aggravated this
pre-existing condition. Dr. Lovallo further stated that Halisky had reached maximum medical
improvement on November 16, 2020. Dr. Lovallo concluded that Halisky’s January 2019
accident did not contribute to his November 2020 fall and that absent this fall, Halisky would
have been able to continue working full duty.
On September 8, 2021, Dr. Lovallo answered questions from Halisky regarding his injury
to a reasonable degree of medical certainty. Dr. Lovallo admitted that “Halisky’s left shoulder
was rendered more susceptible to the injuries he sustained on November 17, 2020, as a
consequence of the injuries that he sustained on January 23, 2019, and the surgical interventions
that were necessitated.” Dr. Lovallo opined that Halisky’s November 2020 injuries “would not
have been as severe had it not been for the prior injuries” that Halisky sustained in January 2019.
He further opined that Halisky was unable to perform his duties as a firefighter “due to the
restrictions resulting from his left shoulder, as a combination of” the January 2019 injury and the
November 2020 “additional injuries.” Dr. Lovallo concluded that Halisky had 15% loss to his
left arm “as a combination of the injuries” from January 2019 and November 2020.
On November 18, 2021, the parties convened for a hearing with the deputy
commissioner. At the hearing, the parties stipulated that Dr. Lovallo was Halisky’s treating
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physician and that Halisky had been “totally disabled” due to his left shoulder injury since
November 17, 2020. Fairfax County countered that there was no causal connection between
Halisky’s injury and disability or between his injury and medical treatment.
Halisky testified that he was working as an EMT in January 2019 when he injured his left
shoulder pulling a stretcher out of the back of an ambulance. He had never suffered pain or
received treatment on his left shoulder before this incident. He underwent surgery and returned
to work on January 27, 2020. Halisky testified that he continued to suffer shoulder pain
following his return to work. Then, on November 17, 2020, Halisky was fishing on his uncle’s
boat in Florida when he slipped and fell and landed on his left shoulder. Halisky “felt the same
pain [he] felt with the initial injury.”
After reviewing the evidence and the oral testimony, the deputy commissioner concluded
that Halisky’s “fall on November 17, 2020, [wa]s a compensable consequence of the January 23,
2019 accident.” The deputy commissioner entered an award in Halisky’s favor in the amount of
$942.11 per week, beginning November 17, 2020, and continuing until conditions justified a
modification. The deputy commissioner credited Halisky’s testimony that he was unaware of
any pre-existing issues in his shoulder before the compensable accident, which was supported by
the lack of any prior medical treatment for the left shoulder before the work accident in January
2019. The deputy commissioner also noted Halisky’s unchallenged testimony that he had
trouble at work once he returned to full duties. After considering all the evidence, the deputy
commissioner found that Dr. Lovallo’s opinion provided the “critical link” between the
compensable accident on January 23, 2019, and the aggravation on November 17, 2020. He
found Dr. Lovallo’s September 8, 2021 written responses “[p]articularly compelling.” These
responses confirmed that the compensable work accident rendered Halisky’s left shoulder more
susceptible to the injuries he sustained in November 2020 and that the injuries Halisky sustained
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in November 2020 would not have been as severe but for the 2019 work-related injury and
resulting surgery.
The deputy commissioner acknowledged that “the fall on the boat [wa]s not an
independently compensable injury by accident under the Act” but, rather, a compensable
consequence of the January 23, 2019 accident. And he found exceptions that could have relieved
Fairfax County of responsibility for the compensable consequences from Halisky’s November
17, 2020 fall did not apply.1 Thus, finding that Halisky’s fall was not attributable to his conduct,
the deputy commissioner found that “[t]he uncontroverted evidence shows [Halisky]
unintentionally slipped, fell, and landed on his shoulder.”
Fairfax County timely submitted its request for review of the deputy commissioner’s
opinion to the Commission, asserting that the deputy commissioner erred in finding that Halisky
met his burden of proving his 2020 disability was a compensable consequence of his January 23,
2019 work accident. Fairfax County also asserted that the deputy commissioner erred in finding
that Halisky’s disability, starting on November 17, 2020, was not attributable to his intentional
conduct of falling on a fishing boat in Florida while on vacation. Finally, Fairfax County
contended the deputy commissioner erred in finding that Halisky’s fall on a fishing boat
exacerbated his original work injury.
The Commission affirmed the deputy commissioner’s findings, emphasizing that
Dr. Lovallo ultimately related the claimant’s condition after the fall in Florida to the January 23,
2019 work accident and that Dr. Lovallo’s causation opinion was uncontradicted. The
1
The deputy commissioner outlined three exceptions to the doctrine of compensable
consequences: “an aggravation of an earlier occupational injury if the new injury results from an
accident that is independently compensable under” the Act, “a consequence resulting from an
intervening cause attributable to a claimant’s intentional conduct,” and “a compensable
consequence of a compensable consequence.” Relevant here is whether Halisky’s intentional
conduct caused the disability, as alleged by Fairfax County.
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Commission agreed with the deputy commissioner’s assessment that Halisky’s work accident
made his left shoulder susceptible to the aggravation he suffered in November 2020, a
compensable consequence of his original injury. Fairfax County appeals.
ANALYSIS
Decisions of the Commission “shall be conclusive and binding as to all questions of
fact.” Code § 65.2-706(A). “Consequently, on appeal, ‘we do not retry the facts before the
Commission nor do we review the weight, preponderance of the evidence, or the credibility of
witnesses.’” Jeffreys v. Uninsured Emp.’s Fund, 297 Va. 82, 87 (2019) (quoting Caskey v. Dan
River Mills, Inc., 225 Va. 405, 411 (1983)). Instead, “we are bound by the [C]ommission’s
findings of fact as 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.” Anderson, 65 Va. App. at 361 (alteration in original)
(quoting Artis, 45 Va. App. at 83-84). It is well-established that “[t]he [C]ommission’s
construction of the Act is entitled to great weight on appeal.” Wardell Orthopaedics, P.C. v.
Colonna’s Shipyard, Inc., 72 Va. App. 296, 301 (2020) (alterations in original) (quoting Ceres
Marine Terminals v. Armstrong, 59 Va. App. 694, 702 (2012)). Conversely, “the
[C]ommission’s legal determinations are not binding on appeal and will be reviewed de novo.”
Roske v. Culbertson Co., 62 Va. App. 512, 517 (2013) (quoting Wainwright v. Newport News
Shipbuilding & Dry Dock Co., 50 Va. App. 421, 430 (2007)).
On appeal, Fairfax County challenges the Commission’s award of temporary total
disability benefits, beginning November 17, 2020, and continuing until conditions justify a
modification. Fairfax County argues that the Commission erred in finding that Halisky’s
disability was a compensable consequence of his earlier work accident. Fairfax County also
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contends that the Commission erred in finding that Halisky’s disability was not attributable to his
intentional conduct.
“The doctrine of compensable consequences allows a claimant to recover for injuries that
result from an industrial accident even if those injuries do not manifest during the initial
industrial accident, but rather, develop at some point in the future.” Anderson, 65 Va. App. at
363 (citing Berglund Chevrolet, Inc. v. Landrum, 43 Va. App. 742, 751 (2004)). “When the
primary injury is shown to have arisen out of and in the course of employment, every natural
consequence that flows from the injury likewise arises out of the employment, unless it is the
result of an independent intervening cause attributable to claimant’s own intentional conduct.”
Farmington Country Club, Inc. v. Marshall, 47 Va. App. 15, 22 (2005) (quoting Imperial Trash
Serv. v. Dotson, 18 Va. App. 600, 606-07 (1994)). “The issue in cases involving the range of
compensable consequences flowing from the primary injury is essentially one of whether the
medical evidence proves a causal connection between the primary injury and the subsequent
occurrence.” Williams Indus., Inc. v. Wagoner, 24 Va. App. 181, 188 (1997).
The claimant has the “burden of proving causation.” Farmington, 47 Va. App. at 27
(citing Marcus v. Arlington Cnty. Bd. of Supervisors, 15 Va. App. 544, 551 (1993)). The
Commission’s determination regarding causation is a finding of fact. Tex Tech Indus., Inc. v.
Ellis, 44 Va. App. 497, 504 (2004). “A finding of causation need not be based exclusively on
medical evidence, and a claimant is not required to produce a physician’s medical opinion in
order to establish causation.” Id. (citing Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 176-77
(1996)). Causation may be proven by direct or circumstantial evidence, including by either
medical evidence or testimony of the claimant. Id.Fairfax County argues that “the evidence clearly demonstrates that [Halisky’s] fall in
Florida was not directly caused by the original injury and also did not exacerbate the original
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injury.” Rather, Fairfax County contends Halisky’s 2020 fall merely re-aggravated his
pre-existing arthritis. Fairfax County alleges that the Commission relied erroneously on
Dr. Lovallo’s September 8, 2021 opinion, in which Dr. Lovallo opined that Halisky’s left
shoulder was more susceptible to the injuries he sustained on the boat because of the original
work injury and that his inability to work as a firefighter was due to a “combination of the
January 23, 2019, injury and the additional injuries he sustained on November 17, 2020.”
Fairfax County argues that these opinions were “inconsistent with contemporaneous medical
notes and his prior opinions.”
Given the level of deference our Court affords the factual findings of the Commission
and given the credible evidence that supported its factual findings, we disagree with Fairfax
County. Though Dr. Lovallo confirmed that Halisky’s 2020 fall aggravated his arthritis, which
pre-existed his work accident, this was not his only statement regarding the causation of
Halisky’s disability. In September 2021, Dr. Lovallo opined, to a reasonable degree of medical
probability, that “Halisky’s left shoulder was rendered more susceptible to the injuries he
sustained on November 17, 2020, as a consequence of the injuries that he sustained on January
23, 2019.” As the Commission noted, “Dr. Lovallo ultimately related the claimant’s condition
after the fall in Florida to the January 23, 2019 work accident.” Finding Dr. Lovallo’s opinion
was “uncontradicted,” the Commission appropriately credited his opinion in forming its factual
findings related to causation. The Commission made its determination based on credible
evidence. Moreover, Halisky’s testimony that his pre-existing arthritis was asymptomatic before
the compensable work injury in 2019—and that he continued to suffer shoulder pain following
the work accident—supported Dr. Lovallo’s opinion. Because we do not reweigh the
Commission’s findings of credibility, Dr. Lovallo’s opinion provided a sufficient evidentiary
basis for the Commission’s decision. See Jeffreys, 297 Va. at 87.
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Fairfax County also argues that Halisky’s aggravation of his shoulder injury was the
result of an intervening cause attributable to his own intentional conduct, as he “voluntarily and
intentionally chose to travel to Florida for recreational purposes where he was involved in an
accident that had no causal connection to his original work accident or original work injury.”
Halisky responds that “the mere act of going fishing, and living his life” does not constitute “the
type of intentional conduct, which breaks the causal chain from Halisky’s original injury and
fall.” He testified that he unintentionally slipped, fell, and landed on his shoulder. Moreover,
there was “no medical restriction” that prohibited him from fishing or engaging in everyday
activities and recreation.
Fairfax County’s arguments are misguided. It failed to present any evidence of the type
of intentional conduct required to bar recovery in this matter. Instead of relying on evidence of
“intentional conduct,” they highlight Halisky’s decision to go on a vacation. As the Commission
found, Dr. Lovallo ultimately related Halisky’s condition after the fall in Florida to his January
23, 2019 work accident. Based upon Halisky’s testimony and Dr. Lovallo’s opinion, the
Commission could reasonably conclude that Halisky did not partake in intentional conduct that
attributed to his change in condition.
CONCLUSION
We do not reweigh the factual and credibility determinations of the Commission when
such determinations are supported by credible evidence. Here, the Commission’s findings were
based on credible evidence from Dr. Lovallo that was corroborated through the uncontradicted
testimony of Halisky. For the foregoing reasons, we affirm the decision of the Commission.
Affirmed.
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