COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
WILLIAMS INDUSTRIES, INC. AND
PACIFIC EMPLOYERS INSURANCE COMPANY
OPINION BY
v. Record No. 0861-96-2 JUDGE MARVIN F. COLE
FEBRUARY 11, 1997
TERRY LYNN WAGONER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Arthur T. Aylward (Midkiff & Hiner, P.C., on
briefs), for appellants.
B. Mayes Marks, Jr. (B. Mayes Marks, Jr.,
P.C., on brief), for appellee.
Williams Industries, Inc. and Pacific Employers Insurance
Company (collectively "employer") appeal the decision of the
Workers' Compensation Commission ("commission") awarding
temporary total disability benefits to Terry Lynn Wagoner
("claimant"). Employer argues that the commission erred (1) in
determining that claimant's work-related spinal injuries
aggravated his idiopathic hip disease; (2) in applying the
compensable consequences doctrine; and (3) in concluding that
employer was responsible for all expenses related to claimant's
hip disease. Because the commission did not err, we affirm its
decision.
Background
Claimant, who worked as a draftsman for employer, suffered a
back injury on April 11, 1991, in an accident accepted as
compensable by employer. Claimant's injuries included herniated
discs at L4-5 and L5-S1, as well as degenerative joint disease
and spinal stenosis. Claimant underwent various surgical
procedures to treat his spinal injuries, which included bone
grafts taken from his hips. A laminectomy and discectomy for the
herniation at L4-5 was performed by Dr. Hallett H. Mathews,
treating physician and orthopaedic surgeon, on May 9, 1991. Dr.
Mathews reported that claimant's work-related injury continued.
Fusion surgery was performed on April 1, 1993, for the spinal
stenosis at L4-5 with intercondylar collapse at L5-S1, and for a
lumbar instability syndrome. The employer accepted liability for
these conditions and paid related benefits. Claimant last
received compensation on October 6, 1993, before he returned to
work.
In August 1994, claimant began reporting tenderness and pain
in both hips. On August 3, 1994, Dr. Mathews found evidence of
avascular necrosis ("AVN") in both of claimant's hips. 1 On
October 17, 1994, Dr. Mathews commented that claimant "is having
a lot of back aggravation because of his protected gait for both
hips. He has [AVN] and we have made this diagnosis bilaterally."
On August 5, 1994, orthopaedic surgeon Dr. Douglas E. Jessup
1
Dorland's Illustrated Medical Dictionary, 26th ed. (1985)
defines necrosis as "the sum of the morphological changes
indicative of cell death and caused by the progressive
degradative action of enzymes . . . ." Dorland's further
identifies osteonecrosis as "death, or necrosis, of bone," and
avascular necrosis as such cell death "due to deficient blood
supply."
Medical evidence in this case states that "AVN is due to a
disruption of the blood flow within the femoral heads."
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agreed that claimant had "idiopathic osteonecrosis [of] both
femoral heads." Orthopaedic surgeon Dr. William A. Jiranek
examined claimant on October 21, 1994, also diagnosed bilateral
osteonecrosis, and recommended surgery, which was performed on
December 14, 1994.
On December 21, 1994, Dr. Rebecca M. Bigoney opined that
claimant's AVN "clearly appears to be related to the previous
back injury." On February 13, 1995, Dr. Mathews noted complaints
of back and left leg symptoms and reported that claimant "has had
bilateral hip, [AVN] and coring by Dr. Jiranek and certainly his
hips have been made worse by the lumbar spine surgery and the
protection that he has had to do for his back and also the stairs
and steps which have been part of his job requirements." On
March 8 and March 15, 1995, Dr. Mathews again commented on the
interrelationship between claimant's back and hip pain, stating
that claimant's ongoing back condition "has certainly caused wear
and tear in his hips which has propagated an ongoing condition of
[AVN]. They are now feeding off of each other with
symptomatology."
On March 13, 1995, claimant filed a change in condition
application, requesting temporary total disability benefits for
the period from December 14, 1994 to January 3, 1995, payment of
all bills related to the hip surgery, and permanent partial
disability benefits. The deputy commissioner found that while
not actually causing claimant's AVN, treatment for claimant's
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work-related spinal injuries aggravated the AVN. The deputy
commissioner awarded claimant temporary total disability benefits
and surgery costs.
The full commission affirmed the deputy commissioner's
opinion, finding that the record proved that claimant's AVN was
both aggravated by and aggravated claimant's back injuries. The
commission found employer liable for claimant's AVN condition,
even if the condition was idiopathic in etiology.
Analysis
On appeal, we review the evidence in the light most
favorable to the party prevailing below. R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings by the commission that are supported by credible
evidence are conclusive and binding upon this Court. Code
§ 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991).
The commission found, and claimant concedes, that no
evidence proved that his original back injury caused the AVN in
his hips. Claimant argues, however, that his AVN preexisted his
back injury and was aggravated by the back injury. Employer
argues that claimant's AVN arose after claimant's back injury and
became debilitating independent of the back injury.
The doctrine of compensable consequences is well established
and has been in existence for many years. We have stated the
basic principle:
When the primary injury is shown to have
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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
independent intervening cause attributable to
claimant's own intentional conduct.
Morris v. Badger Powhatan/Figgie, Int'l., Inc., 3 Va. App. 276,
283, 348 S.E.2d 876, 879 (1986) (quoting A. Larson, The Law of
Workmen's Compensation, §§ 13 and 81.30).
Larson further explains that:
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 concepts 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
upon the concepts of "direct and natural
results," and the claimant's own conduct as
an independent intervening cause.
Id. at § 13.11.
In Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d
291 (1941), claimant was working at a machine, about fifteen feet
from an electric motor which was being repaired. A loose wire in
the motor caused a short circuit, which produced an electric
flash and a sound resembling that of a shotgun. Claimant saw the
flash and fell backwards when she was rescued by a co-employee.
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First aid was administered and she was sent home. She testified
that she was in good health prior to this incident. She returned
to work the following day. While at work about a month later,
claimant looked up and suddenly saw the employee who had caught
her when she fell. She fainted and fell and at the time of the
hearing had not returned to work. The medical evidence of both
parties conclusively established that the cause of the disability
was traumatic neurosis. The commission traced this to the
original accident and awarded compensation for the neurosis. The
Supreme Court said:
The doctors thus, in effect, stated that
traumatic neurosis was traceable to the shock
or disturbing effect on the nerves of the
patient, and that in turn, the irritation of
the nerves caused functional disorders, and,
that whether the disability resulted from
nervous reaction or from auto-suggestion set
in motion by memory of the accident, the
result was the same to the injured person.
Id. at 209, 13 S.E.2d at 293.
The Supreme Court pointed out in Burlington Mills Corp. that
the claimant's disability was occasioned by an injury which "may
be fairly traced" to a risk which arose out of and in the course
of her employment. There was a direct causal relation between
the electric flash and the irritated condition of her nervous
system. Id. at 210, 13 S.E.2d at 293; see also E.C. Womack, Inc.
v. Ellis, 209 Va. 588, 592-93, 166 S.E.2d 265, 268-69 (1969)
(holding that psychiatric symptoms resulting in disability from
work flowed from injuries received in primary accident and were
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compensable); Imperial Trash Service v. Dotson, 18 Va. App. 600,
606-07, 445 S.E.2d 716, 720 (1994) (citation omitted) (stating
general rule "'When 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 independent intervening cause
attributable to claimant's own intentional conduct.'").
Assuming that claimant's AVN preexisted his back injury, the
law supports the commission's decision that employer was liable
for the costs associated with claimant's AVN. It is well
established that the employer takes the employee as the employer
finds the employee, even where the employee suffers some physical
infirmity. Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373
S.E.2d 725, 726 (1988). "A finding that a pre-existing condition
'was accelerated or aggravated' by an injury sustained in an
industrial accident establishes a causal connection between the
injury and disability[,] and the 'disability resulting therefrom
is compensable under the Workers' Compensation Act.'" Southern
Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32,
34 (1993) (quoting Olsten of Richmond v. Leftwich, 230 Va. 317,
320, 336 S.E.2d 893, 895 (1985)). As we will discuss below,
sufficient evidence proved that claimant's back injury
accelerated and aggravated his AVN. Therefore, the commission
did not err in ruling that employer was liable if claimant's AVN
preexisted his back injury.
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Assuming that claimant's AVN did not preexist his back
injury, but instead arose after his back injury, the commission
also did not err in ruling that employer was nevertheless liable
for the costs associated with claimant's AVN. The commission
found that the claimant's back injury was aggravated by his AVN
because he had to alter his gait pattern and body mechanics to
accommodate the AVN pain. Moreover, it found to the extent his
back was dysfunctional, the partial loss of use inhibits such
accommodation with respect to the AVN, aggravating that
condition. Additionally, the commission found that because the
AVN had to be treated in order to reduce the effects on the work
injury, the employer is responsible for the costs of such
treatment. We have reviewed the medical record and we find
credible evidence to support the commission's findings. 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. See Leonard v. Arnold, 218
Va. 210, 214, 237 S.E.2d 97, 100 (1977); Bartholow Drywall Co.,
Inc. v. Hill, 12 Va. App. 790, 794, 407 S.E.2d 1, 3 (1991).
Here, the commission did not err in determining that the
evidence proved the requisite "causal connection" between
claimant's AVN and his back injury. The most competent medical
evidence supporting the commission's conclusion includes the
February 13, 1995 note from Dr. Mathews, which reported that
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claimant "has had bilateral hip, [AVN] and coring by Dr. Jiranek
and certainly his hips have been made worse by the lumbar spine
surgery and the protection that he has had to do for his back and
also the stairs and steps which have been part of his job
requirements." (Emphasis added.) On March 8 and March 15, 1995,
Dr. Mathews again commented on the interrelationship between
claimant's back and hip pain, stating that claimant's ongoing
spine condition "has certainly caused wear and tear in his hips
which has propagated an ongoing condition of [AVN]." Lastly, Dr.
Bigoney opined that claimant's AVN "clearly appears to be related
to the previous back injury."
This evidence supports the commission's finding that
claimant's increasingly debilitating AVN was a natural
consequence that flowed from and was a direct result of his back
injury. Accordingly, claimant met his burden of proving that his
AVN was a compensable consequence of his back injury.
Finally, we agree with the commission's determination that
employer should pay all costs related to claimant's treatment for
his AVN. The commission stated:
[B]ecause the [AVN] must be treated to reduce
the symptomatology and its effects on the
direct work injury, such treatment is
effectively treatment of the direct work
injury, and the employer must be responsible
for the costs of such treatment on these
grounds also. . . . [I]t is clear that the
claimant's [AVN] is both aggravated by and
aggravates the claimant's work injury, so the
employer is liable for that condition also,
even if it was idiopathic in etiology.
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The commission did not err, therefore, in holding the employer
responsible for all the expenses.
For these reasons, we affirm the commission's decision.
Affirmed.
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