COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
HENRICO COUNTY SCHOOL BOARD
OPINION BY
v. Record No. 1317-00-2 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 25, 2001
CATHY MAE B. ETTER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Michael P. Del Bueno;
Williams, Lynch & Whitt, P.C., on brief), for
appellant.
B. Mayes Marks, Jr. (Marks and Williams,
P.C., on brief), for appellee.
Henrico County School Board (employer) appeals an award by
the Workers' Compensation Commission (commission) of temporary
total disability benefits to Cathy Mae Etter (claimant) upon her
change-in-condition application. Employer contends the award is
unsupported by the evidence. 1 Finding no error by the
commission, we affirm the award.
To prevail on her change in condition application, claimant
had to prove by a preponderance of the evidence that she suffered
an incapacity to work that was causally related to the October 11,
1996 compensable injury she suffered while working for employer.
See King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148
1
For purposes of this appeal, we have consolidated
employer's four interrelated questions presented.
(1984); Rosello v. K-Mart Corp., 15 Va. App. 333, 335, 423 S.E.2d
214, 216 (1992). In reviewing the commission's decision, we view
the evidence in the light most favorable to claimant, the party
prevailing before the commission. See Allen & Rocks, Inc. v.
Briggs, 28 Va. App. 662, 672, 508 S.E.2d 335, 340 (1998).
So viewed, the evidence established that claimant, who had
previously undergone surgery on her right knee in March 1995,
suffered a compensable injury to her right knee on October 11,
1996, while driving a school bus for employer. Dr. Frederick S.
Fogelson operated on her knee in November 1996, and claimant
returned to work on December 2, 1996. Pursuant to an award of the
commission, employer paid claimant temporary total disability
benefits for the period October 11, 1996 through December 1, 1996.
Claimant continued to work as a school bus driver until she
moved to Chesterfield County in January 1997. There, she worked
approximately once a week as a house cleaner and provided
childcare for at most two children during the summers. The
problems with her right knee, claimant testified, never went away
after the November 1996 surgery. She continued to experience
ongoing pain. She saw Dr. Fogelson on March 6, 1997, complaining
of pain and buckling in her knee after going up and down the steps
in her home. She received additional medical treatment for her
knee in June 1997 and October 1997, respectively.
Following Dr. Fogelson's retirement, claimant came under the
care of Dr. William E. Nordt, III. On July 29, 1998, Dr. Nordt
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examined claimant, who complained of persistent knee pain, and
diagnosed her with early degenerative disease of the right knee.
On August 18, 1998, Dr. Nordt performed arthroscopic surgery on
claimant's right knee. On September 2, 1998, Dr. Nordt wrote that
claimant's knee condition was a continuation of her previous
compensable industrial injury. On October 12, 1998, responding to
a questionnaire from claimant's counsel, Dr. Nordt wrote:
Patient's arthroscopic findings indicated a
problem that was primarily degenerative in
nature. An acute injury, such as that
occurring in [sic] 10/11/96, could have
exacerbated this condition.
On February 23, 1999, the first operation and subsequent
physical therapy having failed to relieve claimant's condition,
Dr. Nordt performed another arthroscopic surgery on claimant's
right knee. On June 8, 1999, in response to another questionnaire
from claimant's counsel, Dr. Nordt indicated that claimant's
October 11, 1996 accident aggravated, accelerated, or exacerbated
an underlying condition and that that aggravation, acceleration,
or exacerbation resulted in or contributed to her need for surgery
on August 18, 1998 and February 23, 1999, respectively.
When asked at his deposition on June 28, 1999, about the
differences between the responses he gave in the two
questionnaires, Dr. Nordt acknowledged that, after the first
arthroscopic surgery, he had some doubt about the causal
relationship between claimant's current condition and her
industrial injury. He confirmed his opinion that claimant's
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condition was primarily degenerative in nature. He admitted,
however, that he struggled with the question of "to what degree
the problem [was] chronic, degenerative in nature and to what
degree one can expect this to be acute, the result of an injury."
The question, Dr. Nordt conceded, was "almost too difficult to
know."
Dr. Nordt went on to say in his deposition, however, that,
after the second surgery, he "firmed [his] opinion" about the
causal contribution of claimant's work-related injury to her
symptoms and need for the surgeries. Dr. Nordt opined that the
industrial "accident probably contributed to the minutest degree"
to claimant's need for the August 1998 and February 1999
surgeries. Claimant's symptoms, Dr. Nordt stated, made the
surgeries necessary. Dr. Nordt explained his use of the phrase
"to the minutest degree" to describe the industrial accident's
causal connection with claimant's current condition, as follows:
[Claimant's counsel] discussed [the second
questionnaire] with me and talked a little
bit about Virginia law and asked if he were
able to . . . use the term "contribute," is
what seems to have stuck out in my mind
anyway, the term he used . . . and what I
agreed with was "even one iota," can we say
with a degree of medical certainty that these
conditions were related, and having put it in
sort of that minute of category, my answer to
that would be yes.
It was, Dr. Nordt testified, "to that degree, that one iota, that
minute degree" that he answered the questions on the second
questionnaire. Dr. Nordt confirmed that his June 8, 1999
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responses to the second questionnaire still accurately reflected
his opinion.
Claimant filed a change-in-condition application with the
commission on August 27, 1998, seeking temporary total disability
benefits for the periods July 29, 1998 through November 15, 1998,
and February 8, 1999 through May 9, 1999. The commission found,
based on the uncontradicted opinion of Dr. Nordt, that claimant
met her burden of proving that her August 18, 1998 and February
23, 1999 surgeries and the associated recovery periods during
which she was disabled from working constituted a change in
condition causally related to her October 11, 1996 industrial
injury. Accordingly, the commission awarded claimant temporary
total benefits for August 18, 1998 through October 12, 1998, and
February 8, 1999 through April 12, 1999.
Appealing from that award, employer contends claimant failed
to prove that her 1996 work-related injury causally contributed to
her need to have the 1998 and 1999 operations. We disagree.
The commission's determination of causation is a finding of
fact. American Filtrona Co. v. Hanford, 16 Va. App. 159, 165,
428 S.E.2d 511, 515 (1993). The factual findings of the
commission are conclusive and binding on appeal if supported by
credible evidence in the record. Southern Iron Works, Inc. v.
Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). "The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
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commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991). "This rule applies
when an expert's opinion contains internal conflict." Greif
Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471
S.E.2d 803, 806 (1996). "Likewise, the [c]ommission's
conclusions upon conflicting inferences, legitimately drawn from
proven facts, are equally binding on appeal." Watkins v. Halco
Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983). "In
determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters., Inc., 12 Va. App. at 894, 407
S.E.2d at 35.
Additionally, "[a] doctor's statement that a certain
condition is probably connected to the injury means there is a
reasonable likelihood of causation, which 'is sufficient to
permit a trier of fact to accord the statement probative
weight.'" Marriott Int'l, Inc. v. Carter, 34 Va. App. 209, 215,
539 S.E.2d 738, 741 (2001) (quoting Cook v. City of Waynesboro
Police Dep't, 225 Va. 23, 30, 300 S.E.2d 746, 749 (1983)). "The
testimony of a claimant may also be considered in determining
causation . . . ." Dollar General Store v. Cridlin, 22 Va. App.
171, 176, 468 S.E.2d 152, 154 (1996).
Applying these principles to the circumstances presented in
this case, we find that the medical record and Dr. Nordt's
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opinions, coupled with claimant's testimony, constitute credible
evidence to support the commission's factual determination that
claimant's 1998 and 1999 operations were causally related to her
1996 industrial injury. The medical record and claimant's
testimony reflect that claimant suffered continuing pain in her
right knee following the November 1996 surgery. Dr. Nordt opined,
following the 1998 surgery, that claimant's knee condition was a
continuation of her 1996 work-related injury. Shortly thereafter,
Dr. Nordt expressed some doubt about his ability to conclude that
claimant's industrial injury contributed, along with the
degenerative condition of claimant's knee, to claimant's need for
surgery, but he solidified his opinion after performing the second
operation on claimant's right knee. Following the 1999 surgery,
he opined that claimant's work-related accident aggravated,
accelerated, or exacerbated her pre-existing degenerative
condition, which, in turn, resulted in or contributed to
claimant's need for the 1998 and 1999 surgeries. "[T]he
accident," Dr. Nordt explained, "probably contributed to the
minutest degree." As the commission noted, Dr. Nordt offered the
only medical opinion on the issue of causation.
Although some of Dr. Nordt's responses and statements
regarding the causal relation between claimant's 1996
work-related accident and her 1998 and 1999 surgeries may
arguably conflict with each other, the commission, as fact
finder, was entitled to determine the weight, meaning, and
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credibility to give his respective responses and statements and
to reconcile any possible conflicts therein. Because the
commission's finding that claimant's compensable injury causally
contributed to her incapacity to work following the 1998 and
1999 operations is supported by credible evidence, we will not
disturb that finding on appeal.
Employer also argues that claimant failed to meet her
burden of proving by a preponderance of the evidence that her
work incapacity was causally related to the 1996 industrial
accident because Dr. Nordt testified only that "the accident
probably contributed to the minutest degree." That testimony,
employer asserts, fails to rise to the level of a preponderance
of the evidence. The preponderance of the evidence in this
case, employer argues, proves only that the true cause of
claimant's knee surgeries in 1998 and 1999 was the degenerative
condition of her knee.
We find that employer, in making this argument,
misconstrues Dr. Nordt's opinion and confuses the "two causes"
rule with the "more probable than not" rule. The pertinent
findings and conclusions of Dr. Nordt may be stated as follows:
(1) Claimant's 1998 and 1999 surgeries on her right knee
resulted in claimant's temporary incapacity to work; (2) the
condition of claimant's right knee necessitated the 1998 and
1999 surgeries; and (3) while primarily caused by the
pre-existing degenerative knee disease, the condition of
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claimant's right knee necessitating the 1998 and 1999 surgeries
was also caused, to some small degree, by claimant's 1996
compensable work-related injury.
In proving causation in a workers'
compensation case where the evidence
demonstrates two or more potential causative
factors, one of two conclusions follows.
Either, a combination of factors contributed
to cause the disability; or, one of the
factors caused the disability to the
exclusion of the others.
The "two causes rule" addresses those
cases "where a disability has two causes:
one related to the employment and one
unrelated." Under the two causes rule,
"full benefits [are] allowed when it is
shown that 'the employment is a contributing
factor.'" The "more probable than not
rule," addresses those cases where only one
of a number of possible factors caused the
disability. Under the more probable than
not rule, for the disability to be
compensable, it must be more probable than
not that it was caused by the work-related
factor. That is, a preponderance of
evidence must show that work was the cause
of the disability.
Duffy v. Commonwealth/Dep't of State Police, 22 Va. App. 245,
251, 468 S.E.2d 702, 705 (1996) (citations omitted) (alteration
in original).
Here, the evidence proved that the need for claimant's 1998
and 1999 knee surgeries was caused by two factors: the
non-work-related degenerative condition and the compensable 1996
work-related injury. The extent or degree to which the
work-related cause contributed is not important. It matters
only that the work-related cause contributed in some part to
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claimant's disability. See Ford Motor Co. v. Hunt, 26 Va. App.
231, 237-38, 494 S.E.2d 152, 155 (1997) (applying "two causes"
rule even though claimant's treating physician opined that
disability was "mainly" caused by non-work-related condition).
Thus, under the "two causes" rule, full benefits are allowed for
claimant's disability.
Accordingly, we affirm the commission's award. Claimant's
request for appellate attorney's fees is denied.
Affirmed.
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