COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
MARRIOTT INTERNATIONAL, INC. AND
CONTINENTAL CASUALTY COMPANY
OPINION BY
v. Record No. 0680-00-1 JUDGE JAMES W. BENTON, JR.
JANUARY 9, 2001
ROBERT D. CARTER, III
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Roger L. Williams (John T. Cornett, Jr.;
Williams, Lynch & Whitt, on brief), for
appellants.
Byron A. Adams for appellee.
Marriott International, Inc., appeals from the Virginia
Workers' Compensation Commission's award of temporary total
disability benefits and medical benefits to Robert D. Carter,
III. Marriott contends that Carter's disability was unrelated
to his April 4, 1997 injury by accident and that the medical
treatment provided by physicians other than Carter's treating
physician was unauthorized. For the reasons that follow, we
affirm the commission's decision.
I.
On appeal, we review the evidence in the light most
favorable to the party prevailing below. See R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). So viewed, the evidence at the evidentiary hearing
proved that on April 4, 1997, Carter sustained an injury to his
left knee while he was on his knees cleaning a floor. Carter
testified that when he leaned back to grab a bucket, he felt a
sharp pain in his knee. Marriott, his employer, denied
responsibility for Carter's claim.
Carter selected as his treating physician Dr. Thomas
Stiles, an orthopedic surgeon, who was listed in his employee
handbook. On June 5, 1997, Dr. Stiles performed arthroscopic
surgery on Carter's left knee, shaving some chondromalacia from
the patella and removing a small flap tear on Carter's lateral
meniscus. Dr. Stiles also shaved the fat pad on Carter's knee.
Despite this surgical intervention, Carter continued to have
pain in his knee. In August 1997, Dr. Stiles noted that Carter
had a "rather marked weakness of his left quadriceps."
Nevertheless, following a September 22, 1997 examination of
Carter's knee, Dr. Stiles released Carter to return to work.
On October 2, 1997, after a fall he attributed to weakness
in his knee, Carter went to a hospital emergency room, where he
was treated by Dr. Thomas Camp. Dr. Camp's assessment of
Carter's condition was that Carter had sustained an "[a]cute
exacerbation of a chronic left knee disorder with effusion."
Dr. Camp provided Carter with a knee immobilizer and crutches
and directed him to follow up with his physician.
Carter testified that he had no income and no other source
for paying his medical bills because Marriott had not paid any
- 2 -
of his medical bills. Carter, therefore, obtained treatment
through his wife's health insurance plan. Using her plan, he
received treatment from Dr. Virginia Wells, the designated
primary care physician for his wife's health insurance plan.
After examining Carter regarding his knee injury, Dr. Wells
referred Carter to Dr. Charles Wilhelm, an orthopedist.
Dr. Wilhelm viewed the videotape of the arthroscopic
surgery performed by Dr. Stiles and opined that the
chondromalacia treated by Dr. Stiles' surgery was probably
caused by Carter's April 4, 1997 injury. Dr. Wilhelm further
opined that he did not see any reason why Carter's accident
could not have caused the chondromalacia. He explained that he
was "not aware that there is any other contributing cause." Dr.
Wilhelm testified that Carter's complaints of pain seemed out of
proportion to the orthopedic manifestations of his injury;
however, he further testified that "some people who have
terrible softening and mechanical destruction of the joint . . .
don't appear to have a lot of pain and then there are other
people who don't have much destruction but who appear to have a
lot of pain. It's a very diverse range of symptomatology for
people who have that." Dr. Wilhelm stated that the procedure
Dr. Stiles employed "might improve some mechanical symptoms, but
would not be expected to alleviate the pain." He did not assert
that Carter was malingering and noted that the atrophying of
Carter's quadriceps tended to substantiate Carter's complaints
- 3 -
of pain. Dr. Wilhelm testified that muscle atrophy can result
either from injury and disuse or pain syndrome.
During a February 13, 1998 visit, Dr. Wilhelm noticed an
absence of quadriceps contraction in Carter's left leg and
referred Carter to a neurologist, Dr. Shawke Soueidan. Dr.
Soueidan performed an EMG of Carter's left leg and lower back,
the results of which were minimally abnormal. Based on the
results of various tests, Dr. Soueidan concluded that the
atrophy was not progressive, but was caused by disuse secondary
to Carter's knee pain. After an August 1998 follow-up visit,
Dr. Soueidan noticed, however, progressive atrophy of the
quadriceps, coupled with hypoflexia.
On June 11, 1998, Dr. Wilhelm performed arthroscopic
surgery because Carter "had persistent left knee pain." He
observed further erosion of the articular surface of the kneecap
and "some inflamed . . . lining tissue." Dr. Wilhelm found
nothing that satisfactorily explained the extent of Carter's
pain and admitted he was at a loss to explain the cause of the
atrophy and hypoflexia. He described Carter's pain complaints
as enigmatic and concluded that Carter "had a pain syndrome,
which emanated from a work-related injury without a diagnosis
for that ever provided by my intervention." Dr. Wilhelm
explained that he could find no orthopedic explanation for
Carter's pain; however, he concluded that Carter was pain-free
- 4 -
prior to the accident and that the pain was caused by the work
injury.
Following the hearing, the deputy commissioner ruled that
Carter was unable to work as of December 30, 1997, and ordered
compensation to be paid to Carter as of that date. The deputy
commissioner also ruled, however, that the medical treatments
Carter received from Drs. Camp, Wells, Wilhelm, and Soueidan
were unauthorized and that Marriott was not responsible for
those medical treatments. On review, the commission affirmed
those rulings in part and reversed in part. The commission held
that Carter was only partially disabled from December 30, 1997
through June 15, 1998 and that he had failed to adequately
market his residual work capacity. The commission also held
that Carter was totally disabled effective June 16, 1998.
Although the commission agreed that Dr. Stiles was Carter's
treating physician, the commission applied Code § 65.2-603(C)
and found that Carter had established good reason for seeking
treatment from Dr. Wilhelm and the other physicians Carter had
seen directly or by referral for his work-related injury.
Marriott appealed this award.
II.
"Causation is an essential element which must be proven by
[an employee] in order to receive an award of compensation for
an injury by accident . . . ." AMP, Inc. v. Ruebush, 10 Va.
App. 270, 274, 391 S.E.2d 879, 881 (1990). "The actual
- 5 -
determination of causation is a factual finding that will not be
disturbed on appeal if there is credible evidence to support the
finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688,
376 S.E.2d 814, 817 (1989). Moreover, "[w]here reasonable
inferences may be drawn from the evidence in support of the
commission's factual findings," we will not disturb those
findings on appeal. Hawks v. Henrico County Sch. Bd., 7 Va.
App. 398, 404, 374 S.E.2d 695, 698 (1988).
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." Cook v. City of
Waynesboro Police Dep't, 225 Va. 23, 30, 300 S.E.2d 746, 749
(1983). The commission may also consider "[t]he testimony of
[an employee] . . . in determining causation, especially where
the medical testimony is inconclusive." Dollar General Store v.
Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996). In
addition, the commission may rely upon circumstantial evidence
in finding that an injury was caused by a particular accident.
See Van Geuder v. Commonwealth, 192 Va. 548, 557, 65 S.E.2d 565,
570-71 (1951).
Carter testified that his knee pain commenced with the work
effort he was engaged in on April 4, 1997 and was never
completely relieved by the medical treatment he received. The
commission reviewed the medical evidence and found as follows:
- 6 -
Dr. Wilhelm has consistently related the
claimant's condition to the work-related
incident. Dr. Wilhelm stated that the
claimant suffered a pain syndrome that
emanated from, and started with, the
work-related injury. Similarly, both Dr.
Camp and Dr. Soueidan noted the accident,
the June 1997 surgery, and subsequent weak
knee problems. Significantly, Dr. Stiles
found marked left quadriceps weakness on
August 25, 1997. No medical report advances
a different cause. There is no medical
evidence that any treatment was unreasonable
or unnecessary.
The medical evidence and the reasonable inferences that flow
from this evidence support these findings. "Medical evidence is
not necessarily conclusive, but is subject to the commission's
consideration and weighing." Hungerford Mech. Corp. v. Hobson,
11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). Furthermore,
on appeal, we "[do] not retry the facts, reweigh the
preponderance of the evidence, or make [our] own determination
of the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Carter presented credible evidence that sufficiently proved
his disabling condition was caused by the April 4, 1997 injury
by accident. Accordingly, the commission's finding that
Carter's injuries were causally connected to his industrial
accident was not plainly wrong.
III.
Where an employer initially denies that an injury is
compensable, the employee is entitled to select a treating
- 7 -
physician. See Bassett Burkeville Veneer v. Slaughter, 21 Va.
App. 575, 578-79, 466 S.E.2d 127, 128-29 (1996). Once the
employee selects a treating physician, the employee cannot
unilaterally change physicians unless an emergency exists or the
commission approves the change. See Goodyear Tire & Rubber Co.
v. Pierce, 9 Va. App. 120, 130, 384 S.E.2d 333, 339 (1989). In
a related vein, Code § 65.2-603(C) provides as follows:
If in an emergency or on account of the
employer's failure to provide the medical
care during the period herein specified, or
for other good reasons, a physician other
than provided by the employer is called to
treat the injured employee, during such
period, the reasonable cost of such service
shall be paid by the employer if ordered so
to do by the Commission.
The record proved and the commission found that Carter
turned to his wife's insurance plan to pay for his medical
treatment. Her plan required him to use her primary care
physician, who referred Carter to Dr. Wilhelm. The commission
found that Carter "had good reason to treat with [Drs. Wells,
Camp, and Wilhelm] because [Marriott] had declined to accept the
claim and payment for these physicians would be covered by his
wife's health insurance." The commission also found that the
treatment was reasonable, necessary and related to his work
injury. Credible evidence in the record supports these
findings. Accordingly, we will not disturb the commission's
ruling that Marriott was responsible for the medical treatment
provided by these doctors and their referrals.
- 8 -
For the reasons stated above, the decision of the
commission is affirmed.
Affirmed.
- 9 -