COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
MAPLE LEAF BAKERY, INC. AND
MID-CENTURY INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2655-01-3 PER CURIAM
FEBRUARY 12, 2002
KAIS H. ALHASANI
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Iris W. Redmond; Midkiff, Muncie & Ross,
P.C., on brief), for appellants.
(Easter P. Moses, on brief), for appellee.
Maple Leaf Bakery, Inc. and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in (1) finding that Kais H. Alhasani (claimant)
proved that he sustained an injury by accident arising out of
and in the course of his employment on April 5, 2000; (2)
denying employer's post-hearing request to rebut Dr. Dorothy
Garner's deposition testimony; and (3) finding claimant proved
that the exacerbation of his pre-existing Brucella Abortus
infection and resulting disability were compensable consequences
of his April 5, 2000 injury by accident. Upon reviewing the
record and the parties' briefs, we conclude that this appeal is
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
I. Injury by Accident
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
order to carry [the] burden of proving an 'injury by accident,'
a claimant must prove that the cause of [the] injury was an
identifiable incident or sudden precipitating event and that it
resulted in an obvious sudden mechanical or structural change in
the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,
865 (1989). "Factual findings made by the commission will be
upheld on appeal if supported by credible evidence." See James
v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989).
Claimant testified that on April 5, 2000, while at work, he
slipped on some flour on the floor and fell, while pulling a
pallet jack. Claimant stated that he struck his lower back on
an adjacent pallet and injured his left wrist in the process.
Claimant testified that he reported the accident that day to
Mary Alice Reeves, his team leader. He stated that she "tied
his wrist for him." Claimant sought medical treatment the next
day with Dr. Darrell F. Powledge, an occupational medicine
physician.
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Reeves testified that she was able to communicate with
claimant, but admitted that her ability with Arabic was "poor."
Reeves stated that on April 6, 2000, before claimant started
working, he complained that his back was hurting from work.
Reeves did not ask claimant why his back was hurting, and he did
not volunteer that information. Reeves claimed that claimant
did not tell her he had fallen down or that he had injured his
back falling down nor did he report any injury on April 5, 2000.
She denied being asked to wrap claimant's wrist. She admitted
that packers, such as claimant, moved pallets with jacks "all
the time" and that flour could be found on the bakery floor
"from time to time."
Dr. Powledge's April 6, 2000 office note indicated that
claimant was evaluated for a back injury that occurred the
evening before at about 9:00 p.m., when he was pulling a heavy
pallet jack and his hands slipped off the handles causing him to
fall backwards and "[land] on his bottom." Dr. Powledge
reported that claimant strained his left wrist, but that his
chief complaint was low back pain. Dr. Powledge noted that
claimant, who did not speak English well, was accompanied by a
friend, who interpreted for them.
Dr. G.E. Clapsaddle, an occupational medicine physician,
who examined claimant on April 13, 2000, recorded the following
history of the April 5, 2000 incident: "While at work at
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approximately 2100 hours on 4/5/00, [claimant] was pulling on
some boxes and fell backwards, twisting his back and falling
down."
Dr. Sander W. Leivy, a neurosurgeon, who evaluated claimant
on April 25, 2000, noted that claimant spoke minimal English and
recorded a history of claimant's injury occurring "at work at
Maple Leaf Bakery pulling some pallets when he felt sudden onset
of low back pain with pain across the hips."
In accepting the deputy commissioner's finding that
claimant's testimony and demeanor were credible and in ruling
that claimant proved he sustained an injury by accident arising
out of and in the course of his employment on April 5, 2000, the
commission found as follows:
[C]laimant's accident description is
essentially unchallenged in the record. He
has described, with the aid of an
interpreter, an accidental injury that
occurred at a reasonably particular time and
place, causing injury.
While the medical histories recorded by
the claimant's physicians varied somewhat in
minute detail, taken as a whole and
considering the obvious language barrier, we
find they are generally consistent with the
claimant's sworn testimony. Further, the
employer's only witness does not refute the
accident history. Reeves confirmed that
workers such as the claimant always used
pallet jacks to do the work he described,
and further confirmed that it was not
unusual for flour to be present on the floor
where he worked. . . . Reeves [sic]
testimony established that the claimant
reported work-related back pain the day
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after it occurred. The fact that the
claimant did not relate the specific
mechanism of injury to Reeves means
absolutely nothing since she admitted she
did not ask for it. Absent some evidence
that the claimant knew then that he was
supposed to elaborate about his injury, we
find no reason now to discount more detailed
medical histories and sworn testimony he has
given.
Claimant's testimony, which was essentially corroborated by
the medical histories, constitutes credible evidence to support
the commission's findings. As fact finder, the commission was
entitled to accept claimant's testimony. It is well settled
that credibility determinations are within the fact finder's
exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va.
App. 374, 381, 363 S.E.2d 433, 437 (1987). In this instance,
the issue of whether claimant sustained an injury due to a
specific identifiable incident occurring at work on April 5,
2000 was entirely dependent upon claimant's credibility. The
commission, in considering the medical evidence and the
testimony of the witnesses, found claimant's evidence was
sufficient to establish his claim. "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).
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Because the commission's finding that claimant sustained a
specific identifiable incident resulting in a sudden mechanical
change in his body on April 5, 2000 is supported by credible
evidence, we will not disturb it on appeal.
II. Rebuttal Evidence
Employer contends the commission erred in denying it the
opportunity to introduce additional evidence from Dr. George W.
James, IV, regarding the causation of the aggravation of
claimant's Brucella infection and resulting disability, after
claimant's counsel took the post-hearing deposition of
Dr. Garner.
In ruling that the deputy commissioner properly denied
employer's request for additional post-hearing discovery, the
commission found as follows:
The employer was well aware, as early
as August 2000 that it was Dr. Garner's
opinion that the claimant's infection was
exacerbated by the work-related accidental
injury. We recognize, as pointed out by
employer's counsel, that the underlying
basis for this opinion was largely left
unstated in her reports. Dr. Garner's
reports state that the claimant's infection
was exacerbated by the accident, but not how
it was exacerbated. Nevertheless, we find
that this has consistently remained her
opinion, and that her more detailed
deposition testimony is entirely consistent
with her earlier reports.
As noted by the Deputy Commissioner,
the employer had ample time -- both before
and after the hearing -- to investigate the
basis for Dr. Garner's opinion through
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discovery. It did not do so, relying
instead upon -- as counsel put it -- the
"assumption" that Dr. Garner felt that
"claimant's actual fall or injury are what
aggravated claimant's preexisting Brucella."
Rather than elucidate the medical basis for
Dr. Garner's opinion through discovery prior
to the hearing -- to formulate a proper
defense -- the employer sought at the last
minute to introduce a challenge to the bare
medical records. Ironically, it appears
that it was the late submission, of the
employer's expert report, that prompted the
entire post-hearing discovery process.
We find no abuse of discretion in the commission's denial
of employer's request to introduce rebuttal evidence after
Dr. Garner's February 21, 2001 deposition. Claimant filed his
claim on June 13, 2000, approximately seven months prior to the
December 28, 2000 hearing. Furthermore, Dr. Garner consistently
opined, since at least August 31, 2000, that the exacerbation of
claimant's Brucella infection was causally related to the April
5, 2000 injury by accident. Employer had ample time, prior to
the hearing, to develop evidence regarding causation and, in
fact, did so by submitting Dr. James' December 20, 2000 report
shortly before the hearing. That report necessitated the deputy
commissioner leaving the record open for claimant to submit the
January 10, 2001 responsive report of Dr. Garner and for
employer to take Dr. Garner's deposition on February 21, 2001.
Employer was allowed ample opportunity to cross-examine
Dr. Garner at that time. Contrary to employer's contention,
Dr. Garner did not render a new opinion regarding causation in
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her deposition. Rather, she elaborated on the opinion that she
had expressed as early as August 31, 2000. Employer knew of
Dr. Garner's opinion long before the hearing and had opportunity
to determine the underlying basis for that opinion before the
hearing, but failed to do so.
III. Causation
"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 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."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 668-69, 508
S.E.2d 335, 338 (1998) (citations omitted). The doctrine of
compensable consequences 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."'" Id. at 669, 508 S.E.2d at 338 (citations
omitted). Moreover, "[t]he actual 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).
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In ruling that claimant proved the exacerbation of his
pre-existing Brucella infection and the resulting disability
constituted compensable consequences of the April 5, 2000 injury
by accident, the commission found as follows:
Dr. Garner[, the treating infectious
disease physician,] has maintained
throughout her treatment of the claimant
that his previously quiescent Brucella
infection was aggravated or exacerbated by
the work-related injury. She described in
some detail the mechanism whereby this
preexisting infection was caused to become
symptomatic by the steroidal treatment
administered by Dr. [Murray] Joiner --
treatment administered to control the
claimant's primary complaints related to
back pain. This primary treatment was
clearly related to the compensable injuries,
and the flare-up of his infection flowed
naturally and as a compensable consequence
of such treatment. Therefore, the
defendants are responsible for the treatment
of this condition, and for the disability
that resulted.
In its role as fact finder, the commission was entitled to
weigh the medical evidence. The commission did so and accepted
Dr. Garner's opinion, while rejecting Dr. James' contrary
opinion. "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). Dr. Garner's
opinion provides credible evidence to support the commission's
finding. "The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
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support the commission's finding." Wagner, 12 Va. App. at 894,
407 S.E.2d at 35.
For these reasons, we affirm the commission's decision.
Affirmed.
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