Allen & Rocks, Inc. v. Briggs

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia

ALLEN & ROCKS, INC. AND
NORTH RIVER INSURANCE COMPANY
OPINION BY
v. Record No. 0768-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 22, 1998
PERRY LEE BRIGGS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy, III (Collin J. Hite; Sands,
Anderson, Marks & Miller, on brief), for
appellants.

Gary Lumsden (Rhonda L. Overstreet; Lumsden,
Overstreet & Hansen, on brief), for appellee.

Allen & Rocks, Inc. and its insurer (collectively referred

to as "employer") contend the Workers' Compensation Commission

("commission") erred (1) in finding that Perry Lee Briggs'

("claimant") injury to his left knee was a compensable

consequence of his work-related back injury; (2) in refusing to

remove Dr. Murray Joiner as claimant's treating physician; and

(3) in awarding attorney's fees. For the following reasons, we

affirm in part and reverse in part.
I. BACKGROUND

On April 24, 1980, claimant, a porter, suffered a

compensable injury to his lower back when he slipped on stairs in

the course of his employment. His claim was accepted by employer

and several awards for compensation benefits and lifetime medical

benefits have been entered.
 The evidence established that claimant came under the care

of Dr. Murray Joiner, a physiatrist, on November 9, 1994.

Following an initial evaluation of claimant, Dr. Joiner noted a

history of two lumbar laminectomies, a spinal fusion, and a right

meniscus repair surgery. On that occasion, claimant reported

"bilateral low back pain which is constant and sharp in quality,"

with radiation into his right lower extremity. Dr. Joiner

initially diagnosed claimant's condition as "failed back

syndrome," and he recommended injections and physical therapy.
Over the next year, claimant followed this treatment plan of

physical therapy and injections. On February 27, 1996, claimant

returned to Dr. Joiner with severe pain in his lower left leg.

Dr. Joiner opined that the left knee pain was "[secondary] to

chronic gait deviations," caused by claimant's failed back

syndrome. Claimant was referred for additional physical therapy

to treat his back and left knee pain. On at least seven

occasions in 1996, Dr. Joiner assessed claimant's condition as

left knee pain secondary to chronic back pain. In 1997, Dr. Sam

Samarsinghe, a pain management specialist, treated claimant for

"increased back discomfort with bilateral leg radiation."

When employer's insurance carrier initially denied medical

coverage for claimant's knee condition, Dr. Joiner wrote the

company several letters. On March 5, 1996, Dr. Joiner requested

Jean Ellison, a claims examiner, to reconsider the denial of

medical treatment. Dr. Joiner repeated his diagnosis that

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claimant suffered from knee pain secondary to chronic gait

deviations with failed back syndrome. He concluded, "Mr. Briggs

would not suffer his current knee pathology if he did not have

the gait deviations which are directly related to his failed back

syndrome." A similar letter was written on January 6, 1997,

requesting that the insurer approve medical expenses for a knee

brace and physical therapy for claimant's back injury and

bilateral knee problems. The insurer continued to deny the claim

asserting that the medical care did not "appear" to relate to the

original workers' compensation claim.
At employer's request, claimant underwent an independent

medical evaluation by Dr. Daniel L. Hodges on November 11, 1996. 1

In his report, Dr. Hodges reviewed claimant's medical history

and noted his complaints of pain radiating into both lower

extremities. Dr. Hodges concluded that claimant suffered from

"failed back syndrome" and a "[history] of right knee surgery

with secondary mechanical pain due to his antalgic gait from his

low back."

Claimant filed a claim seeking to hold employer responsible

for medical treatment to his left knee as a compensable

1
While there was some dispute as to whether the November 11,
1996 medical report of Dr. Hodges was made part of the record
before the deputy commissioner, the full commission considered
the report in rendering its opinion. As noted by the commission,
Dr. Hodges' opinion was not contradictory to the opinion of Dr.
Joiner and, therefore, any error in the deputy commissioner's
failing to keep the record open was harmless. Furthermore, this
procedural issue was not raised on appeal and is not before us.

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consequence of his back injury. Thereafter, employer filed an

application requesting a change in treating physicians. On March

28, 1997, claimant filed a supplemental claim requesting

attorney's fees because employer denied necessary medical

treatment without reasonable grounds.

The parties agreed to submit the issues for a hearing on the

record. The commission found that claimant's injury to his left

knee was a compensable consequence of his work-related back

injury. The commission denied employer's application to remove

Dr. Joiner as claimant's treating physician and awarded claimant

his requested attorney's fees.

II. COMPENSABLE CONSEQUENCES AND CUMULATIVE TRAUMA

Employer argues that the commission erred in awarding

benefits to claimant because his left knee condition was a result

of cumulative trauma injury not covered by the Act. According to

employer, claimant's knee pain constituted a new cumulative

trauma injury because it was caused by an ongoing disturbance in

his gait. Employer contends that as a matter of law the doctrine

of compensable consequences does not apply when there is a

gradually incurred injury. This argument presents an issue of

first impression for this Court.

The full commission found that claimant's knee pain was

caused by his gait deviations, which was a direct result of the

compensable work injury to his back. Accordingly, the commission

held it was a "compensable consequence" of the original injury.

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The doctrine of compensable consequences arose from a line of

Supreme Court cases discussing chain of causation principles. In

Justice v. Panther Coal Co., 173 Va. 1, 2 S.E.2d 333 (1939), the

claimant fractured his pelvis in the course of his employment.

While in the hospital for treatment of the compensable injury,

the claimant died from acute lobar pneumonia. See id. at 3, 2

S.E.2d at 334. Reversing the commission's denial of benefits,

the Court wrote:
Decedent was hale and hearty for several
years immediately preceding the accident. He
was never sick during this period. After the
accident, exposure and operation, he was
confined to the hospital where we presume all
proper precautions were taken to prevent the
onslaught of pneumonia from any source.
Notwithstanding these precautions, pneumonia
developed in an otherwise apparently vigorous
and healthy man within five days from the
date of the accident and within three days
from the date ether was administered,
resulting in death some five days later. In
the absence of positive affirmative evidence,
tending to establish a break in the chain of
causation, the inevitable conclusion from the
evidence is that the death of the decedent
resulted "naturally and unavoidably from the
accident."

Id. at 7, 2 S.E.2d at 336 (emphasis added).

In Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977), the

Court adopted the term "compensable consequences" and provided

the following rule: "When a primary injury under the Workmen's

Compensation Act is shown to have arisen out of the course of

employment, every natural consequence that flows from the injury

is compensable if it is a direct and natural result of a primary

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injury. . . . This doctrine extends the canopy of the Workmen's

Compensation Act to the resulting injury. This is so because the

second injury is treated as if it occurred in the course of and

arising out of the employee's employment." Id. at 214, 237

S.E.2d at 99-100. See also Immer & Co. v. Brosnahan, 207 Va.

720, 727-28, 152 S.E.2d 254, 258-59 (1967) (applying chain of

causation rule and awarding compensation benefits for the

claimant's injuries sustained in an automobile accident while en

route to a medical provider for treatment of original

work-related injury).
More recently, we addressed the doctrine of compensable

consequences in Amoco Foam Products Co. v. Johnson, 26 Va. App.

267, 494 S.E.2d 169 (1997).
In Virginia, the doctrine of compensable
consequences "is well established and has
been in existence for many years." Williams
Indus., Inc. v. Wagoner, 24 Va. App. 181,
186, 480 S.E.2d 788, 790 (1997).

This doctrine, also known as the chain of
causation rule, provides that "where the
chain of causation from the original
industrial injury to the condition for which
compensation is sought is direct, and not
interrupted by any intervening cause
attributable to the employee's own
intentional conduct, then the subsequent
condition should be compensable."
Food Distribs. v. Estate of Ball, 24 Va. App. 692, 697,
485 S.E.2d 155, 158 (1997) (quoting Leadbetter, Inc. v.
Penkalski, 21 Va. App. 427, 432, 464 S.E.2d 554, 556
(1995)) (emphasis added).

[W]hen the question is whether compensability
should be extended to a subsequent injury or
aggravation related in some way to the
primary injury, the rules that come into play

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 are essentially based upon the concepts of
direct and natural results, and the
claimant's own conduct as an independent
intervening cause.

Williams Indus., Inc., 24 Va. App. at 186, 480 S.E.2d
at 790 (citation omitted) (emphasis added). "The
simplest application of this principle is the rule that
all the medical consequences and sequelae that flow
from the primary injury are compensable." American
Filtrona Co. v. Hanford, 16 Va. App. 159, 163, 428
S.E.2d 511, 513 (1993) (citation omitted) (emphasis
added).

Id. at 273-74, 494 S.E.2d at 172-73.
While we have long accepted the doctrine of compensable

consequences, employer urges us to adopt a narrow application of

the rule when there exists a consequence that is not attributable

to a sudden identifiable accident, but is instead gradually

incurred. Here, employer contends it is irrelevant whether

claimant's knee condition was a compensable consequence of his

original back injury because under our Supreme Court's decision

in The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795

(1996), an employee may not recover for cumulative trauma

injuries, "however labeled or however defined." Id. at 199, 467

S.E.2d at 802. Employer argues that the Stenrich rule bars

recovery because claimant's knee condition, even if a consequence

of his original injury, was the result of cumulative trauma

triggered by a gait problem developed over a period of time. We

disagree.

In Stenrich, the Court held as a matter of law that

repetitive motion injuries such as "carpal tunnel syndrome" and

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"tenosynovitis" are not compensable under the Act. Id. at

189-91, 199, 467 S.E.2d at 797-98, 802. In determining that

these injuries did not constitute occupational diseases, the

Court made it clear that an "injury of gradual growth, . . .

caused by the cumulative effect of many acts done or many

exposures to conditions prevalent in the work, no one of which

can be identified as the cause of the harm, is definitely

excluded from compensation." Id. at 192-93, 467 S.E.2d 798-99

(citing Aistrop v. Blue Diamond Coal Co., 181 Va. 287, 293, 24
S.E.2d 546, 548 (1943) (internal quotations omitted)). Stenrich

sets the parameters for the initial coverage determination of a

primary injury.

The Court in Stenrich did not consider whether the rule

applies to "chain of causation" or "compensable consequence"

injuries. The difference between a primary injury and an injury

that is a compensable consequence of the primary injury is

significant. Professor Larson explains:
A distinction must be observed between
causation rules affecting the primary injury
. . . and causation rules that determine how
far the range of compensable consequences is
carried, once the primary injury is causally
connected with the employment. As to the
primary injury, it has been shown that the
"arising" test is a unique one quite
unrelated to common-law principles of legal
cause, and . . . the employee's own
contributory negligence is ordinarily not an
intervening cause preventing initial
compensability. But when the question is
whether compensability should be extended to
a subsequent injury or aggravation related in
some way to the primary injury, the rules
that come into play are essentially based

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 upon the concept of "direct and natural
results," and of claimant's own conduct as an
independent intervening cause.
The basic rule is that a subsequent
injury, whether an aggravation of the
original injury or a new and distinct injury,
is compensable if it is the direct and
natural result of a compensable primary
injury.
The simplest application of this
principle is the rule that all medical
consequences and sequelae that flow from the
primary injury are compensable.

* * * * * * *

The first group, about which there is no
legal controversy, comprises the cases in
which an initial medical condition itself
progresses into complications more serious
than the original injury; the added
complications are of course
compensable. . . . [O]nce the work-connected
character of any injury, such as a back
injury, has been established, the subsequent
progression of that condition remains
compensable so long as the worsening is not
shown to have been produced by an independent
nonindustrial cause.

A. Larson, The Law of Workmen's Compensation § 13.11, 13.11(a)

(emphasis added).

In the instant case, claimant had already proven a

compensable injury by accident to his back. Therefore, any

subsequent injury to his knee that is the direct and natural

result of the primary back injury is also compensable under the

chain of causation rule. See Food Distribs., 24 Va. App. at 697,

485 S.E.2d at 158; Leadbetter, 21 Va. App. at 432, 464 S.E.2d at

556-57; Imperial Trash Serv. v. Dotson, 18 Va. App. 600, 606-07,

445 S.E.2d 716, 720 (1994) (stating the general rule that "[w]hen

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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 intervening cause attributable to claimant's own

intentional conduct").

The fact that the compensable consequence does not meet the

requirements of a primary "injury by accident" is of no moment.

The opinions of both Dr. Joiner and Dr. Hodges established that

claimant suffered knee pain secondary to and as a consequence of

his failed back syndrome. Accordingly, we hold the commission

did not err in refusing to apply Stenrich and affirm the finding

of the commission.

III. FINDING OF CAUSATION

Employer next argues that no credible evidence supports the

commission's finding that claimant's knee condition is a

compensable consequence of his back injury. We disagree. "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., 24

Va. App. at 188, 480 S.E.2d at 791 (citing Leonard, 218 Va. at

214, 237 S.E.2d at 100; Bartholow Drywall Co. v. Hill, 12 Va.

App. 790, 794, 407 S.E.2d 1, 3 (1991)).

On appeal, we view the evidence in the light most favorable

to the claimant, who prevailed before the commission. See Amoco

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Foam Products, 26 Va. App. at 272, 494 S.E.2d at 172. "A

question raised by conflicting medical opinion is a question of

fact." WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d

147, 152 (1997). "'Decisions of the commission as to questions

of fact, if supported by credible evidence, are conclusive and

binding on this Court.'" Id. (quoting Manassas Ice & Fuel Co. v.

Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). "'The

fact that there is contrary evidence in the record is of no

consequence.'" Id. (quoting Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).

In the instant case, the commission gave great weight to the

opinion of claimant's treating physician and found that his left

knee pain was related to his 1980 back injury. See Amoco Foam

Products, 26 Va. App. at 272, 494 S.E.2d at 172 (citing Fingles

Co. v. Tatterson, 22 Va. App. 638, 641, 472 S.E.2d 646, 647

(1996) (the opinion of a treating physician is entitled to great

weight)). Here, Dr. Joiner opined on numerous occasions that

claimant's knee problems were causally related to his back

injury. On February 27, 1996, Dr. Joiner diagnosed claimant with

"left knee pain [secondary] to chronic gait deviations" caused by
2
his failed back syndrome. Likewise, Dr. Samarsinghe, the pain

2
On March 5, March 18, July 2, August 21, September 10, and
September 25, 1996, Dr. Joiner again assessed claimant's
condition as left knee pain secondary to chronic back pain.
Additionally, in his progress notes dated June 23, 1997, Dr.
Joiner opined that claimant suffered from chronic bilateral knee
pain secondary to failed back syndrome.

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management specialist, treated claimant for "increased back

discomfort with bilateral leg radiation." (Emphasis added).

Claimant was ultimately referred to physical therapy for

treatment of "[left] knee pain."

There was also additional evidence supporting the

commission's findings in Dr. Joiner's correspondence to the

insurer. On March 5, 1996, Dr. Joiner wrote,
Mr. Briggs presented back to my office . . .
reporting that you had denied his physical
therapy as ordered at his previous visit.
First of all, only a small portion of his
physical therapy had to actually do with his
knee. The majority of the treatment
interventions were directed at his low back
which I believe is indisputably compensable.

As it relates to his left knee pain, as you
will note in my note of 2/27/96 my impression
was that his "left knee pain, secondary to
chronic gait deviations with #1 (#1 was
failed back syndrome) increased with extended
walking on school campus." Mr. Briggs would
not suffer his current knee pathology if he
did not have the gait deviations which are
directly related to his failed back syndrome.

(Emphasis added). In a similar letter dated January 6, 1997, Dr.

Joiner also requested approval for medical expenses for

claimant's "work related back and bilateral knee problems."

Finally, as noted by the full commission, employer presented

no evidence contradicting Dr. Joiner's opinion that claimant's

left knee condition was secondary to his back injury. Employer

contends Dr. Hodges' independent medical examination constitutes

credible evidence that claimant's current knee pain is not a

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compensable consequence of his back injury. However, in his

report, Dr. Hodges noted that claimant had "a pins and needles

sensation radiating into both [lower extremities], as well as

bilateral knee pain, right greater than left." (Emphasis added).

Even assuming that Dr. Hodges' opinion was limited to an

assessment of right knee pain, this opinion does not contradict

Dr. Joiner's assessment. When we examine the evidence in the

light most favorable to claimant, the prevailing party below, we

conclude that the commission's decision is supported by credible

evidence. See Jenkins v. Ford Motor Co., 27 Va. App. 281, 289,

498 S.E.2d 445, 449 (1998); New Leaf, Inc. v. Webb, 26 Va. App.

460, 467, 495 S.E.2d 510, 514 (1998).

IV. CHANGE IN TREATING PHYSICIAN

Employer next argues that the commission erred in refusing

to order a change in claimant's treating physician. "Medical

management of the employee is not to be directed by the employer.

An employer can require an employee to select an attending

physician from its panel of three, but only an attending

physician or the [Workers' Compensation] Commission may require
an employee to see another physician." Schwab Constr. v.

McCarter, 25 Va. App. 104, 109-10, 486 S.E.2d 562, 565 (1997)

(quotations omitted); see also Jensen Press v. Ale, 1 Va. App.

153, 158, 336 S.E.2d 522, 525 (1985) ("A long-held principle of

the . . . Commission, founded on Code § 65.1-88 [now Code

§ 65.2-603], is that medical management of the claimant is to be

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directed by the treating physician, not by an employer's

representative.").

The commission may order a change in the treating physician

when the physician refuses to timely provide copies of the

employee's medical reports to the employer upon request. See

Wiggins v. Fairfax Park Ltd. Partnership, 22 Va. App. 432, 442,

470 S.E.2d 591, 596-97 (1996). The commission has previously set

forth several grounds upon which it will order a change in an

employee's treating physician:
inadequate treatment is being rendered; it
appears that treatment is needed by a
specialist in a particular field and is not
being provided; no progress being made in
improvement of the employee's health
condition without any adequate explanation;
conventional modalities of treatment are not
being used; no plan of treatment for
long-term disability cases; and failure to
cooperate with discovery proceedings ordered
by the Commission.

Powers v. J. B. Constr. Co., 68 O.I.C. 208, 211 (1989)

(construing Code § 65.1-88 (now Code § 65.2-603)). Additionally,

when an employer seeks to change claimant's treating physician

because the claimant has made little progress and no treatment

plan has been derived, the employer must identify the alternative

care that should be substituted and must demonstrate that the

suggested care would be more appropriate and productive. See

Bennett v. Fairfax County Sch. Bd., 74 O.W.C. 1, 4 (1995).

The commission's construction of the Act is entitled to

great weight on appeal. See Gray v. Graves Mountain Lodge, Inc.,

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26 Va. App. 350, 353, 494 S.E.2d 866, 868 (1998). In light of

these well-settled principles, employer's application for a

change in claimant's treating physician is without merit. None

of the enumerated reasons for ordering a change in treating

physician are found in this record. Moreover, the commission

specifically found that "employer's request is primarily because

of Dr. Joiner's `personal intervention as an advocate for the

claimant.'" In its application seeking to remove Dr. Joiner as

treating physician, employer alleged that
Dr. Joiner has departed from objective
treatment of the claimant and has become
biased and irrationally tainted, as shown by
his letter to the carrier dated January 6,
1997. . . . Further, the absence of
improvement in the claimant's condition is
without explanation, and Dr. Joiner's
treatment is inadequate and without a
distinguishable treatment plan.

Employer offered no valid reason to question Dr. Joiner's

treatment of claimant; rather, it simply suggested Dr. Hodges as

a "viable alternative." In seeking a change in the claimant's

treating physician, the employer must identify alternative care

that would be more productive and Dr. Hodges' opinion that

claimant had reached "[maximum medical improvement] with future

treatments such as [physical therapy]" is not sufficient. Like

the commission, "[w]e are unwilling to order a change in treating

physicians simply because the employer objects to the tone of Dr.

Joiner's letter to the claims examiner." The commission did not

abuse its discretion in refusing to order a change in treating

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physicians.

V. AWARD OF ATTORNEY'S FEES

The commission awarded $350 in attorney's fees against

employer for unreasonably defending the claim. The commission

has the authority to award attorney's fees against the employer

if it determines that the employer defended the claim "without

reasonable grounds." Code § 65.2-713(A). "If an employer

refuses to pay a claim, reasonably believing that it is not

compensable, and in the course of its investigation the grounds

for refusal are not so contradicted as to be shown unfounded,

then the subsequent defense is reasonable, even if it is later

proven misplaced or in error." Volvo White Truck Corp. v. Hedge,

1 Va. App. 195, 201, 336 S.E.2d 903, 907 (1985) (citing Norfolk

Dep't of Fire v. Lassiter, 228 Va. 603, 605, 324 S.E.2d 656,

657-58 (1985)).

In this case, employer had reasonable grounds to believe it

had no responsibility to pay for claimant's medical treatment

because we have never addressed the issue of whether a cumulative

trauma injury incurred after the primary injury falls within the

doctrine of compensable consequences. "Although we have rejected

employer's argument, the merits of that argument are an

appropriate consideration in our review of the attorney's fees."

Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 716, 427 S.E.2d

215, 219 (1993). Accordingly, we hold that the award of

attorney's fees was an abuse of discretion.

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 For the foregoing reasons, we affirm the decision of the

commission on the merits but reverse its decision as to the award

of attorney's fees.
Affirmed in part and
reversed in part.

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