COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
HERITAGE HALL BLACKSTONE AND
THE VIRGINIA INSURANCE RECIPROCAL
MEMORANDUM OPINION* BY
v. Record No. 0036-99-2 JUDGE WILLIAM H. HODGES
OCTOBER 19, 1999
TEMPERANCE A. HENLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Andrea L. Bailey (Crews & Hancock, P.L.C., on
brief), for appellants.
No brief or argument for appellee.
Heritage Hall Blackstone and its insurer (hereinafter
referred to as "employer") appeal a decision of the Workers'
Compensation Commission (commission) awarding benefits to
Temperance A. Henley (claimant). Employer contends that the
commission erred in finding that claimant proved that her
cervical disc condition and March 2, 1998 surgery were causally
related to her compensable July 17, 1996 injury by accident.
Finding no error, we affirm the commission's decision.
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
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).
So viewed, the evidence established that on July 17, 1996,
claimant sustained a compensable accident while working for
employer as a charge nurse. The accident resulted in a cervical
and thoracic strain. She testified that a 264 pound patient
rolled onto her arm. At that time, she initially felt pain in
her arm and neck, and later felt numbness.
Claimant sought medical treatment two days later from Dr.
Stacey Katany, who noted paraspinal muscle spasm on the right
side involving the C6-C7 region as well as the trapezius and
rhomboid muscles. Dr. Katany released claimant to return to
work on July 22, 1996 without restrictions.
Between July 22, 1996 and October 1997, claimant continued
to work, but did not perform her normal duties. Claimant's
co-worker, Jennifer Grubb, corroborated claimant's testimony
that during the fifteen-month period after the July 1996
accident, claimant was in a great deal of pain and required the
assistance of other employees to help her with her duties.
Claimant also limited her activities outside of work due to
episodes of pain. Claimant admitted that she did not seek
- 2 -
further medical attention between July 1996 and October 1997 for
her neck or shoulder problem.
On October 9, 1997, claimant sought treatment with Dr.
Cliff Walton for shoulder pain. Dr. Walton recorded a history
of knots in claimant's right shoulder since her work injury with
occasional tingling in her right hand. He also noted muscle
spasms in her arm and shoulder. On October 27, 1997 and
November 20, 1997, claimant was treated by Dr. Melissa Bradner
for complaints of shoulder and neck pain. Dr. Bradner later
confirmed that both visits were for complaints related to
claimant's July 17, 1996 work-related accident.
On November 11, 1997, upon referral from Dr. Bradner, Dr.
John Ayres, an orthopedist, examined claimant. Dr. Ayres
recorded a history of the July 1996 work-related accident and
that claimant "had intermittent pains that Motrin would handle
until about a month and half ago, when the discomfort in her
back seemed to get progressively worse." Dr. Ayres diagnosed
chronic cervical thoracic and right shoulder strain. Dr. Ayres
noted in January 1998, that a December 1997 MRI indicated a
possible cervical disc injury at the C5-6 level on the right
side.
On February 6, 1998, Dr. Kenneth Kiluk, a neurosurgeon,
examined claimant. Dr. Kiluk recorded a history of the July
1996 work-related accident and noted that claimant continued to
- 3 -
work despite ongoing pain. He noted that in October 1997,
claimant's pain became considerably worse. On March 2, 1998,
Dr. Kiluk performed an anterior cervical disc resection at the
C5-6 level on claimant. In his February 12, 1998 Attending
Physician's Report, Dr. Kiluk causally related the cervical disc
injury to the July 17, 1996 work-related accident. In his March
2, 1998 Operative Report, Dr. Kiluk noted that the causal
connection was "difficult to determine" in light of the fact
that claimant did not seek medical treatment for her condition
for about one and one-half years after the accident. He did
note that she was "having increasing symptoms of right radicular
pain with some triceps weakness and some numbness in the dorsum
of her hand."
On May 20, 1998, Dr. W.E. Thompson reviewed claimant's
medical records upon employer's request. Dr. Thompson opined
that "there is no causal relationship whatsoever between the
cervical procedure of March 2, 1998 and the work injury of July
17, 1996."
In ruling that claimant "persuasively established that her
cervical disc injury was caused by the compensable work
accident," the commission found as follows:
[A]fter her July 17, 1996, accident, the
claimant was never able to resume her normal
activities, and continued to suffer pain
from her injury. The claimant's testimony
in that regard is fully corroborated by her
co-worker's testimony, and is consistent
- 4 -
with the histories recorded by the health
care providers. . . .
A finding of causation is also
supported by the medical record. Dr.
Bradner . . . confirmed that the treatment
beginning October 27, 1997, was related to
the July 1996 work accident. Dr. Ayres
. . . recorded an accurate history of the
. . . accident and [claimant's] ensuing
symptoms. . . . Although he made no
specific statement regarding causation, his
diagnosis of the chronic strains juxtaposed
to the accurate history certainly implies a
causal relationship. Dr. Kiluk . . .
provided an Attending Physician's Report
which specifically supported the causal
relationship.
"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). In its role as fact finder, the
commission was entitled to weigh the medical evidence. The
commission did so and accepted the opinions of Drs. Bradner,
Ayres, and Kiluk, while rejecting the contrary opinion of Dr.
Thompson, who never examined or treated claimant. The
commission considered Dr. Kiluk's statement in his operative
report that the causal relationship "is difficult to determine."
The commission was entitled to conclude that Dr. Kiluk's
statement did "not necessarily negate his previously articulated
opinion that the cervical disc injury was caused by the work
accident." "Questions raised by conflicting medical opinions
must be decided by the commission." Penley v. Island Creek Coal
- 5 -
Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). The
medical records and opinions of Drs. Bradner, Ayres, and Kiluk,
along with the testimony of claimant and her co-worker,
constitute credible evidence supporting the commission's
decision. "[T]he commission was free to credit claimant's
testimony at the hearing as a basis for its finding of
causation. The fact that contrary evidence may appear in the
record 'is of no consequence if there is credible evidence to
support the commission's finding.'" Dollar General Store v.
Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155 (1996)
(quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,
407 S.E.2d 32, 35 (1991)).
For these reasons, we affirm the commission's decision.
Affirmed.
- 6 -
Heritage Hall Blackstone v. Henley
Combined Opinion