COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
KENNETH P. THOMPSON
OPINION BY
v. Record No. 0206-02-2 JUDGE ROBERT P. FRANK
AUGUST 13, 2002
BRENCO, INC. AND
LUMBERMEN'S MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
B. Mayes Marks, Jr. (Marks and Williams, on
brief), for appellant.
S. Vernon Priddy III (William B. Judkins;
Sands Anderson Marks & Miller, on brief), for
appellees.
Kenneth P. Thompson (claimant) appeals from a decision of
the Workers' Compensation Commission (commission) denying
claimant's change of condition application. On appeal, claimant
contends the commission erred in finding it did not have
jurisdiction over his claim and in finding his claim failed to
establish a causal connection between his original, compensated
injury and his new injury. While we disagree with the
commission's finding regarding its jurisdiction, we affirm the
denial of benefits.
Background
Claimant was an employee of Brenco, Inc. (employer). He
injured his left hip and femoral shaft, his right forearm, his
head, and his left ear on December 13, 1995, when a ton of metal
tubing fell on him at work. A Memorandum of Agreement between
claimant and employer was filed with the commission on February
23, 1996; the commission approved the agreement and entered an
award order in March 1996.
Claimant continued to have problems with his limbs,
especially his left knee. His legs began to "give out" on him,
although he usually could stop himself from falling to the
ground. Claimant testified his legs "kept on giving out" after
his 1996 surgeries; however, the medical records indicate
claimant did not know when his legs began "giving out." The
records indicate he was improving until he saw Dr. Gurpal
Bhuller in December 1999 and had a "new problem" of his left
knee "giving out." This visit is the first indication in the
medical records that claimant's knee was "giving out" and
causing him to fall. At the hearing, claimant remembered only
one fall with any specificity, when he fell on his back at work
and hit his head on the floor, sometime in December 1999.
Dr. Bhuller became suspicious that this problem
"represent[ed] spinal cause or spinal pathology." Dr. Bhuller
ordered an EMG study, which indicated "the possibility of
cervical spinal stenosis." The doctor then ordered an MRI,
which confirmed claimant had "a tight spinal stenosis."
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Dr. Bhuller told claimant that the spinal stenosis might not be
related to his 1995 injuries and later indicated to employer
that the stenosis was not related to those earlier injuries.
Claimant was referred to a neurosurgeon and was examined by
Dr. David Geckle. Dr. Geckle reviewed the MRI and found "what
look[ed] like a congenitally narrow lumbar canal with four
shortened pedicles." A CT scan showed "[c]ervical spondylosis
at the C5-6 level with moderate foraminal stenosis." In May
2000, Dr. Geckle performed a verebrectomy on claimant's neck
"with autologous iliac crest graft fusion and planting" in hopes
of correcting the problem.
Claimant filed a change of condition application with the
commission on July 12, 2000. Included in the filed documents
was a typed questionnaire, signed by Dr. Geckle. He marked
"Yes" on the form, indicating claimant's "cervical problems"
were "aggravated[d], accelerate[d], and/or exacerbate[d]" by the
December 1995 accident, contributing to the need for the
verebrectomy. No explanation for this conclusion was provided. 1
Employer asked several doctors to examine claimant's
medical records. Dr. Leonard Green, a neurologist, found no
indication that claimant suffered a cervical injury in 1995 and
concluded the condition was congenital. He explained:
1
Nothing in the medical records suggests claimant's
condition could be aggravated by his falls, although falls are
considered a symptom of his condition.
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The claimant's history of his cervical
spinal problem is most consistent with
natural progression related to ordinary
"wear and tear" which almost always occurs
with these spinal canal abnormalities.
Consequently, it is clear and convincing
that the claimant's cervical spinal canal
problem was not causally related to the
industrial accident of December 13, 1995.
Dr. Ralph Hagan, a neurologist, also reviewed claimant's
records. He explained that claimant's problems were typical of
patients with cervical spondylotic myelopathy. Dr. Hagan
concluded:
As Dr. Bhuller stated in his letter of
[February 1, 2000], this condition is not
causally related to his worker's
compensation injury of [December 13, 1995].
Certainly he would have had symptoms prior
to December 1999 if this condition were
related to his worker's compensation injury
four years earlier.
The only witness at the hearing before the deputy
commissioner was claimant. After the hearing, claimant was
awarded $236.76 per week for temporary total disability. The
deputy commissioner accepted Dr. Geckle's "opinion" that
claimant's cervical condition was aggravated by the accident.
The full commission reversed this decision. First, the
commission found it did not have jurisdiction over the case
because the claim was based on a "compensable consequence of a
compensable consequence," referring to Amoco Foam Prods. Co. v.
Johnson, 257 Va. 29, 510 S.E.2d 443 (1999). The commission also
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found the cervical condition was unrelated to the accident,
accepting Drs. Bhuller's, Green's, and Hagan's opinions.
Analysis
Claimant admits his cervical problems were not solely
caused by the 1995 accident. He argues instead that the
accident exacerbated a pre-existing, congenital condition and,
therefore, is compensable. He also argues the commission had
jurisdiction to consider his change of condition claim.
The commission had jurisdiction to consider this claim.
The commission's only basis for rejecting jurisdiction was based
on Amoco. 2 However, the Supreme Court did not address the issue
of jurisdiction in that case. Rather, the Court examined the
record and determined no "causal connection between the original
injury and the November 1995 injury" was established. Id. at
33, 510 S.E.2d at 444. The analysis explained what a claimant
must prove to receive an award, not what must be alleged before
the commission can consider the merits. See id. Clearly, as
the Supreme Court did examine the merits of the claim, Amoco
does not limit the commission's jurisdiction.
The commission here found, in the alternative, that
claimant had not established a causal connection between the
2
The change of condition claim was timely filed under Code
§ 65.2-708, which allows review of awards within "twenty-four
months from the last day for which compensation was paid."
Compensation was last paid to claimant on November 1, 1998, and
his change of condition claim was filed on July 12, 2000.
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1995 incident and the cervical problems. The record supports
this finding. 3
To receive an award, a claimant must prove his change of
condition is causally related to the original occupational
injury. Commonwealth/Cent. Virginia Training Ctr. v. Cordle, 37
Va. App. 232, 237, 556 S.E.2d 64, 67 (2001). The commission's
ruling on causation is a factual finding, which we review with
great deference to the commission. Georgia-Pacific Corp. v.
Robinson, 32 Va. App. 1, 4-5, 526 S.E.2d 267, 268 (2000).
"'[A] finding of fact made by the commission
is conclusive and binding upon this court on
review.' 'That contrary evidence may be in
the record is of no consequence if there is
credible evidence to support the
commission's findings.'" Sneed v. Morengo,
19 Va. App. 199, 204, 450 S.E.2d 167, 171
(1994) (citations omitted).
Id. at 4, 526 S.E.2d at 268.
Claimant argues the accident exacerbated his pre-existing
condition, not that the December 1995 accident directly caused
the condition. Aggravation of a pre-existing condition is
compensable under the Workers' Compensation Act. Manassas Ice &
Fuel Co. v. Farrar, 13 Va. App. 227, 231-32, 409 S.E.2d 824, 827
(1991). Claimant concedes the treating physician, Dr. Geckle,
provided the only testimony in support of his position that the
3
As Amoco ultimately held the injury was not related to the
workplace accident, the commission was correct that Amoco's
analysis prevents an award in this case. However, the issue is
not jurisdictional, but instead is failure to prove an essential
element of the claim.
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accident aggravated his cervical condition. However, examining
the evidence in the light most favorable to the party prevailing
before the commission, see id. at 229, 409 S.E.2d at 826, we
find the commission had sufficient evidence to deny the request
for benefits.
Dr. Geckle's only statement regarding causation was an "X"
beside "Yes," in response to the written question, "In your
opinion . . . did your patient's accident of December 13, 1995
and/or its sequellae aggravate, accelerate, and/or exacerbate
your patient's cervical problems . . . ." Nothing in his
medical reports provides any support for this conclusion.
Indeed, we are uncertain whether claimant believes the accident
itself aggravated his condition or whether the injuries from the
accident and their effects aggravated his cervical problem. 4
While a treating physician's opinion normally is given
great weight, see Pilot Freight Carriers, Inc. v. Reeves, 1 Va.
App. 435, 439, 339 S.E.2d 570, 572 (1986), such an opinion is
not conclusive, especially when the opinion is not accompanied
by any reasoning or explanation. Cf. Lanning v. Virginia Dep't
of Transp., 37 Va. App. 701, 708-09, 561 S.E.2d 33, 36-37 (2002)
(explaining that a "bald assertion" is not enough to prove
causation nor are "talismanic words" necessary). Here, while
4
The commission found no connection existed between the
accident and claimant's cervical problems. Therefore, we need
not address the issue of compensable consequences independently.
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the doctor used the "talismanic words," he provided no
explanation for his conclusion.
On the other hand, Dr. Bhuller, who also treated claimant,
Dr. Green, and Dr. Hagan, all agreed the cervical condition was
not related to the 1995 accident. While they did not explicitly
address the issue of aggravation, they completely rejected any
causal link between the injury and the accident. Dr. Bhuller
called the failure of claimant's left knee a "new problem" in
his medical report. Dr. Hagan concluded claimant "had two
distinct problems," one caused by his accident and one caused by
his spinal/cervical condition. Additionally, the explanations
provided by Drs. Green and Hagan supported their conclusion.
Both doctors noted that claimant's problems were related to a
congenital disorder that appeared to develop along the typical
course for such patients. Therefore, the doctors concluded the
accident did not exacerbate the problem; it was progressing
normally, as if the 1995 accident had not happened.
While the medical opinions conflicted, the commission was
free to decide which evidence was more credible and should be
weighed more heavily. See McPeek v. P. W. & W. Coal Co., Inc.,
210 Va. 185, 188, 169 S.E.2d 443, 445 (1969); Georgia-Pacific
Corp., 32 Va. App. at 5, 526 S.E.2d at 269. We do not find the
commission abused its discretion when it declined to believe
claimant's physician.
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Conclusion
Although the commission incorrectly found it did not have
jurisdiction over this case, we affirm the commission's
alternative finding that claimant failed to prove a causal link
between his workplace accident and his cervical condition. We,
therefore, affirm the commission's denial of benefits.
Affirmed.
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