COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
WESTMORELAND COAL COMPANY AND
A I U INSURANCE COMPANY
OPINION BY
v. Record No. 0084-99-4 JUDGE JAMES W. BENTON, JR.
NOVEMBER 9, 1999
WILLIAM RUSSELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (E. Scott Austin; Gentry,
Locke, Rakes & Moore, on briefs), for
appellants.
Daniel Sachs for appellee.
The sole question presented in this appeal is whether the
commission erred in ruling that Westmoreland Coal Company failed
to meet its burden of proving that William Russell experienced a
change in condition that rendered his continuing disability
causally unrelated to his injury by accident. We affirm the
commission's award.
I.
The record established that William Russell was employed by
Westmoreland Coal Company as a laborer in a coal mine from 1969
until 1995. Westmoreland Coal terminated Russell in 1995 for
economic reasons and recalled Russell to work in February 1997 to
assist in extracting equipment and sealing a mine. On March 25,
1997, in preparation for sealing the mine, Russell and another
worker attempted to move a two-ton mining car that moved off a
track. They used a "jack" to lift the mining car and then
tethered the car to a bolt in the roof. As Russell was
"ratch[ett]ing [and] pulling the car up," the roof bolt dislodged
causing the mining car to fall. The unexpected movement caused
Russell to fall onto his hands and knees injuring his back.
Russell's supervisor drove him to the hospital where Russell
received treatment for pain in his lower back.
After Russell filed a claim for benefits, Westmoreland Coal
stipulated to an award in his favor for temporary total disability
beginning March 26, 1997, and continuing through February 12,
1998. Westmoreland Coal also filed an application for change in
condition alleging that Russell's disability after February 12,
1998 was unrelated to the March 25, 1997 injury by accident.
Following an evidentiary hearing and a review of the evidence, the
deputy commissioner ruled that Russell's "claim for continuing
benefits since February 13, 1998 must be, and . . . is, denied."
On its review, the commission "conclude[d] that [Westmoreland
Coal] has failed to [meet its burden to] prove that [Russell's]
disability after February 12, 1998, is not causally related to the
compensable work accident."
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 under the Virginia Workers' Compensation Act."
AMP, Inc. v. Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881
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(1991). After an award adjudicating causation becomes final,
"absent [a claim of] fraud or mistake, the doctrine of res
judicata bars further litigation of [the issue of causation]."
Id. Thus, "[w]here, as here, causal connection between an
industrial accident and disability has been established by the
entry of an award, an employer has a right to apply for
termination of benefits upon an allegation that the effects of the
injury have fully dissipated and the disability is the result of
another cause." Celanese Fibers Co. v. Johnson, 229 Va. 117, 120,
326 S.E.2d 687, 690 (1985). The employer bears the burden of
proving by a preponderance of the evidence the allegations
contained in its application for a change in condition. See Pilot
Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339
S.E.2d 570, 572 (1986). Thus, unless we can say as a matter of
law that Westmoreland Coal's evidence sustained its burden of
proof, the commission's findings are binding and conclusive on
appeal from its ruling. See Tomko v. Michael's Plastering Co.,
210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In accordance with our well established standard of review,
we view the evidence in the light most favorable to Russell, who
prevailed before the commission. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
commission's factual findings are conclusive and binding on this
Court when those findings are based on credible evidence. See
Code § 65.2-706. "In determining whether credible evidence
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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. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Moreover,
"questions raised by conflicting medical opinions must be decided
by the commission." Penley v. Island Creek Coal Co., 8 Va. App.
310, 318, 381 S.E.2d 231, 236 (1989).
Following its review of the extensive medical evidence, the
commission found as follows:
Based upon the evidence presented, we
find that Russell suffered from degenerated
spine disease in his neck and back which
pre-dated the work accident. We also find
that he had been treated for symptoms
related to his low back prior to the date of
that accident. It is also obvious that most
of the physicians who examined Russell were
not initially aware of the pre-existing low
back symptoms.
The medical evidence establishes that
most, if not all, of the objective findings
related to [Russell's] spine relate to a
chronic, as opposed to acute, degenerative
process. Even so, no doctor has opined that
the work accident did not aggravate or
accelerate that pre-existing condition.
Similarly, no doctor has opined that the
effects of the work accident have completely
dissipated, and that [Russell's] current
condition is related solely to the natural
progression of his degenerative spine
disease, or to some other non-work related
cause.
Dr. Breeding, for example, stated that
"[i]t would appear that most of his
[cervical spine] symptoms are due to the
chronic changes and not to an acute
injury. . . [.]" (Emphasis added). Dr.
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Breeding, therefore, does not rule out a
component of [Russell's] disability being
related to the aggravation of this condition
by the work accident.
Dr. Heiman, being aware that [Russell's]
arthritic involvement of his neck and back
pre-dated the work accident, still opined:
I feel Mr. Russell was injured in
this accident. . . . He may also
have suffered some foraminal
encroachment damage to a nerve in
his neck, related to his spinal
stenosis and arthritis as a result
of his accident causing some of his
significant left arm symptoms.
Those statements certainly do not support
[Westmoreland Coal's] position that
[Russell's] condition is unrelated to the
work accident. . . .
Dr. Burt, in his March 27, 1998, letter,
confirmed that the degenerative changes in
the claimant's spine were chronic and
unrelated to the work accident. Dr. Burt
did not, however, address the question
whether the work accident aggravated that
condition, or whether the claimant had fully
recovered from the effects of the work
accident.
The reports in the record from Dr. Breeding and Dr. Heiman
support the commission's findings.
Westmoreland Coal relies in large measure upon the
testimony and reports of Dr. J. Travis Burt, a neurosurgeon.
The commission made the following findings, however, regarding
Dr. Burt's reports and testimony:
Dr. Burt . . . confirmed that the
degenerative changes in [Russell's] spine
were chronic and unrelated to the work
accident. Dr. Burt did not, however,
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address the question whether the work
accident aggravated that condition, or
whether [Russell] had fully recovered from
the effects of the work accident.
The commission's findings are significant. Dr. Burt's
testimony was not addressed to the issue of change in Russell's
condition. Rather, his testimony was to the effect that
Russell's back condition was chronic and pre-existed the March
injury by accident. That evidence tended only to prove "a
change in . . . opinion on the issue of causation." Ruebush, 10
Va. App. at 275, 391 S.E.2d at 882. Having stipulated to entry
of an award for disability resulting from Russell's injury by
accident to his back occurring on March 25, 1997, Westmoreland
Coal may not now argue that the same disability was solely the
result of a chronic condition that pre-existed the stipulated
disability. Causation, once established, is "barred from
relitigation on grounds of res judicata." Id.
The record supports the commission's findings that no
medical evidence proved that the effects of Russell's
work-related injury by accident have completely dissipated and
that Russell's current disability is caused solely by the
natural progression of this degenerative spine disease or other
non-work related cause. Accordingly, we affirm the commission's
award.
Affirmed.
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