COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
NORTON COMMUNITY HOSPITAL, INC. AND
AMCOMP ASSURANCE CORPORATION
MEMORANDUM OPINION*
v. Record No. 2231-03-2 PER CURIAM
DECEMBER 23, 2003
CHRISTINA MARIE SEXTON
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(S. Vernon Priddy III; Sands Anderson Marks & Miller, on brief),
for appellants.
(D. Allison Mullins; Lee & Phipps, P.C., on brief), for appellee.
Norton Community Hospital and its insurer (hereinafter referred to as “employer”)
contend the Workers’ Compensation Commission erred in finding that Christina Marie Sexton
(claimant) proved that (1) her herniated disc and related disability were causally related to her
June 20, 2002 accident; and (2) she did not violate or exceed her medical restrictions at the time
she sustained her injury on June 20, 2002.1 Upon reviewing the record and the parties’ briefs, we
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The deputy commissioner found, based upon claimant’s credible testimony, that
claimant proved she suffered an accident on June 20, 2002.
The full commission affirmed this finding.
Employer did not include any argument in its brief challenging the commission’s
determination. The two arguments made by employer on appeal pertain to whether claimant
proved a causal link between her disc herniation and resulting disability and the June 20, 2002
accident, and whether she forfeited her claim because her injury resulted from her exceeding or
violating her work restrictions. Accordingly, on appeal, we will not address the commission’s
finding that the evidence established that claimant, based upon her credible testimony, suffered
an accident on June 20, 2002.
conclude that this appeal is without merit. Accordingly, we summarily affirm the commission’s
decision. Rule 5A:27.
Causation
“In order to establish entitlement to compensation benefits, the claimant must prove, by a
preponderance of the evidence, an injury by accident which arose out of and in the course of
[her] employment.” Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989).
“[T]o establish an injury by accident, a claimant must prove: (1) an identifiable incident; (2) that
occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change
in the body; and (4) a causal connection between the incident and the bodily change.”
Chesterfield County v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990) (citation
omitted). “The actual determination of causation is a factual finding that will not be disturbed by
this Court 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).
In ruling that claimant proved a causal connection between her herniated disc and
resulting disability and her June 20, 2002 work-related accident, the commission found as
follows:
We agree that during the spring of 2002, the claimant apparently
participated in some lifting activities, and that she suffered some
episodes of back pain. However, we are not convinced that
Dr. [Galen] Smith was not provided a complete and accurate
history, or that these incidents negate the claimant’s evidence that
the June 20, 2002, incident resulted in a new back injury.
Dr. Smith’s notes reflect that he knew that the claimant was
not completely pain-free or symptom free prior to the episode of
June 20, 2002. His office notes and operative report illustrate his
knowledge that the claimant continued to have back problems
during the spring of 2002, which required medication. On August
22, 2002, Dr. Smith advised that although the claimant was
working and doing reasonably well, she still had some back pain
and mild burning in her feet. Furthermore, he acknowledged that
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the claimant had required four additional prescription refills from
April 22 through June 4, 2002.
Although the claimant suffered from ongoing symptoms
they were not sufficiently severe to cause her to return to Dr. Smith
for treatment. However, after the June 20, 2002, incident, the
claimant described new severe pain, and Dr. Smith emphasized
that on June 20, 2002, “her condition took a sudden turn for the
worst [sic].” Dr. Smith clearly concluded in September 2002 that
the June 20, 2002, incident was a new injury. This correlates with
the diagnosis of the other involved physician. When claimant
received emergency treatment, the healthcare professional
diagnosed acute low back pain.
The employer presented no medical evidence to the
contrary. No physician has opined that the June 20, 2002, incident
merely led to an exacerbation of the claimant’s pre-existing
condition or that her lifting incidents during the spring of 2002
impacted on her pre-existing back condition.
The claimant presented unrefuted evidence that her back
condition was causally related to the new June 20, 2002, accident.
We do not find that the employer’s notations about events of lifting
rebut Dr. Smith’s unequivocal medical opinion that the claimant
sustained a new injury on June 20, 2002. Regardless of the
congenital abnormalities from which the claimant suffered, the
employer takes the employee as it finds her, with all of her
predisposed weaknesses and infirmities.
Dr. Smith’s medical records and undisputed September 18, 2002 opinions constitute
credible evidence to support the commission’s finding. Employer contends Dr. Smith’s opinions
did not constitute credible evidence to establish a causal link between the June 20, 2002 accident
and claimant’s herniated disc because they were based upon an incomplete and inaccurate
history. We disagree.
“Medical evidence is not necessarily conclusive, but is subject to the commission’s
consideration and weighing.” Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677,
401 S.E.2d 213, 215 (1991). The commission weighed Dr. Smith’s September 18, 2002 opinions
in light of the evidence of claimant’s other episodes of back pain between January 2002 and June
20, 2002, and concluded that his opinions constituted credible evidence. Although Dr. Smith’s
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office notes do not specifically note that claimant transported patients on May 16, 2002 and June
6, 2002 or that she missed work due to back pain on June 13, 2002, his notes reflect that he was
well aware that claimant was not without pain or symptoms prior to the June 20, 2002 accident.
His notes indicate that he knew claimant continued to have pain in the spring of 2002, which
required four refills of her prescription medications. He noted that although claimant was
working, she still had some back pain and burning in her feet. In addition to Dr. Smith’s notes,
claimant testified that the severe sharp, shooting, and stabbing pain she felt on June 20, 2002 was
“a thousand times worse” than her back pain before June 20, 2002 and that it was the worst pain
she had ever felt in her life. She also testified that although she had back and leg pain before
June 20, 2002, the pain was never to the degree of the pain she had after June 20, 2002.
Based upon this record, the commission, as fact finder, could reasonably conclude that
Dr. Smith’s opinions, coupled with claimant’s testimony, constituted credible evidence to sustain
claimant’s burden of proving a causal connection between her herniated disc and resulting
disability and the June 20, 2002 accident. “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. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Because the commission’s finding is supported by
credible evidence, we will not disturb it on appeal.
Exceeding/Violating Work Restrictions
Employer argues that claimant failed to prove that her June 20, 2002 injury was an
“accident” because it occurred when she transported a patient, an activity which exceeded or
violated her medical restrictions.
In rejecting this defense, the commission found as follows:
[T]he Deputy Commissioner reasonably determined that the
claimant had not violated or exceeded Dr. Smith’s restrictions.
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The evidence establishes that on the day of the accident, the
claimant was not lifting or transporting a patient, but she was
merely assisting other co-workers and pulled on a bed. We do not
find that this activity exceeded Dr. Smith’s restrictions, or that the
back injury was an expected result of the activity. Furthermore,
we note that on August 22, 2002, Dr. Smith indicated that the
claimant had been performing her normal duties prior to the June
20, 2002, incident. It does not appear that he considered the
claimant to have been restricted to light duty as of that time period.
Claimant’s testimony and Dr. Smith’s medical records provide credible evidence to
support the commission’s findings. On April 1, 2002, Dr. Smith restricted claimant from “lifting
or transporting.” It is undisputed that claimant was not lifting a patient on June 20, 2002 at the
time of her accident. With respect to transporting a patient, claimant testified that she told her
co-worker that while he and another co-worker pushed a critically ill patient’s bed to the
Intensive Care Unit, she would “go along just to open doors and make sure that they got into the
ICU okay without having any complications with the patient.” She stated that at some point in
that process, the bed “didn’t want to go right, it wanted to go straight like the wheels locked up
on it . . . so I just reached down, got the other side of the footboard . . . [a]nd I just helped them
get the bed around the corner so they could get the patient in ICU where she needed to be and
hooked back up to the monitors.” She testified that she “just reacted to an emergency situation”
and that she “did not intentionally set out to transport.”
Based upon this record, the commission, as fact finder, could reasonably infer that
claimant did not transport the patient in violation of her medical restrictions, but she merely
assisted her co-workers in an emergency situation to help get a critically ill patient into ICU.
“Where reasonable inferences may be drawn from the evidence in support of the commission’s
factual findings, they will not be disturbed by this Court on appeal.” Hawks v. Henrico County
Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). Because credible evidence and the
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inferences fairly deducible from that evidence support the commission’s findings, we will not
disturb them on appeal.
For these reasons, we affirm the commission’s decision.
Affirmed.
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Norton Community Hospital v. Christina Marie
Combined Opinion