COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
SHIRLEY M. THOMAS
MEMORANDUM OPINION*
v. Record No. 1293-00-4 PER CURIAM
NOVEMBER 7, 2000
PRINCE WILLIAM COUNTY SCHOOL BOARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Herbert S. Rosenblum, on brief), for
appellant.
(Thomas C. Palmer, Jr.; Brault, Palmer,
Grove, Zimmerman, White & Steinhilber, LLP,
on brief), for appellee.
Shirley M. Thomas (claimant) contends that the Workers'
Compensation Commission erred in finding that (1) she failed to
prove that back surgery proposed by Dr. Ian Gordon was causally
related to her compensable October 4, 1995 injury by accident;
and (2) her application alleging a change-in-condition was
barred by the applicable statute of limitations contained in
Code § 65.2-708. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Surgery (Causation)
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
sustained her burden of proving that the proposed back surgery
was causally related to her October 4, 1995 injury by accident,
the commission's findings are binding and conclusive upon us.
See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).
In ruling that claimant failed to prove that Dr. Gordon's
proposed L3-4 surgical treatment was causally related to her
October 4, 1995 compensable injury by accident, the commission
found as follows:
The proposed surgery is to correct
degenerative disc disease at L3-4. The
overwhelming weight of the evidence shows
the disc degeneration was neither caused,
accelerated, nor aggravated by the
industrial accident. The records of the
four doctors[, Drs. Victor N. Guerrero,
Herbert E. Lane, Jr., Anthony Debs, and John
A. Bruno, Jr.,] who did extensive orthopedic
and neurological work-ups of the injury
failed to find any disc disease at L3-4.
Even Dr. Gordon could not state to a
reasonable medical probability that the disc
degeneration pre-existed the claimant's
injury.
Dr. Gordon, who did not see the
claimant until almost three years after the
accident, can only state that the "patient
has evidence of degeneration of the 3-4 disc
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some of which may have pre-existed her
injury." Dr. Bruno, on the other hand,
clearly states in his February 23, 1999,
report that there is "no evidence that the
trauma of 10/4/95 produced whatever the
disease process is at the 3-4 disk."
Given the claimant's extensive
treatment and evaluation by four orthopaedic
surgeons, a neurosurgeon, and other medical
specialists with multiple diagnostic
work-ups, we find it significant that no
specialist diagnosed or even suggested disc
degeneration and disease at the L3-4 level
before Dr. Gordon. Although Dr. Gordon
argues in his letter of March 15, 1999 to
claimant's counsel that "[i]t is clear by
history and by discography that this
patient's mild degeneration has been
severally [sic] aggravated by her injury and
represents a work injury," he cannot state
to a reasonable medical probability that the
disc degeneration pre-existed her injury.
. . . [T]he first discogram, performed
on July 15, 1998 was characterized as an
"unremarkable exam" with "no evidence of
extravasation." The radiologist noted in
his operative report that injection at the
L3-4 level reproduced pain in the mid back,
which the patient alleged was "similar in
character and location to her present pain
problem." However, when the claimant was
initially seen by Dr. Gordon in June 1998,
Dr. Gordon found that most of the claimant's
problems were related to the low back and
particularly noted severe pain and
tenderness over the L5-S1 level as well as
tenderness over her coccyx.
Based upon Dr. Bruno's February 23, 1999 opinions and the
lack of any persuasive medical evidence of disc disease at the
L3-4 level before October 4, 1995 and before Dr. Gordon began
treating claimant, the commission could conclude that claimant
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failed to prove that the October 4, 1995 accident either caused,
aggravated, or accelerated the L3-4 disc degeneration, for which
Dr. Gordon proposed performing surgery. We note that an MRI of
claimant's lumbar spine, performed on July 19, 1996, nine months
after her industrial accident, was "essentially normal," with
"no evidence of disc herniation, significant degenerative change
or herniated nucleus pulposus." As fact finder, the commission
was entitled to weigh the medical evidence, to accept Dr.
Bruno's opinions, and to give little probative weight to Dr.
Gordon's opinions. "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).
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained her burden of proof.
II. Statute of Limitations
Code § 65.2-708(A) provides in its pertinent part that
"[n]o . . . review [of any award on the ground of
change-in-condition] shall be made after twenty-four months from
the last day for which compensation was paid, pursuant to an
award under this title . . . ."
It was undisputed that December 15, 1995 was the last day
for which compensation was paid to claimant pursuant to an
award. If any payments were made after that date, there is no
evidence in the record to establish that they were paid pursuant
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to an award. 1 Claimant did not file her application alleging a
change-in-condition until March 18, 1999, more than twenty-four
months after December 15, 1995, the last day for which
compensation was paid pursuant to an award. Accordingly, the
commission did not err in finding that claimant's application
was untimely.
For these reasons, we affirm the commission's decision.
Affirmed.
1
Although the record contains an Agreed Statement of Fact
and Supplemental Memorandum of Agreement apparently sent to
claimant in August 1997 by the employer's loss control
specialist, those documents were never executed by claimant and
no award was ever entered by the commission with respect to
those documents.
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