COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
FAMILY HEALTH CARE ASSOCIATES
OF SOUTHWEST VIRGINIA, P.C.
v. Record No. 1238-97-3
SYLVIA PERKINS
MEMORANDUM OPINION * BY
-AND- JUDGE LARRY G. ELDER
DECEMBER 23, 1997
SYLVIA PERKINS
v. Record No. 1290-97-3
FAMILY HEALTH CARE ASSOCIATES
OF SOUTHWEST VIRGINIA, P.C.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
B. L. Conway, II (Conway & Conway, L.L.C., on
briefs), for Sylvia Perkins.
Ramesh Murthy (Penn, Stuart & Eskridge, on
briefs), for Family Health Care Associates of
Southwest Virginia, P.C.
This case involves cross-appeals of a decision of the
Workers' Compensation Commission (commission) awarding medical
benefits, temporary total disability benefits, and permanent
1
partial disability benefits to Sylvia Perkins (claimant).
Family Health Care Associates of Southwest Virginia (employer)
contends: (1) that the commission erred when it concluded that
claimant's entitlement to benefits was not barred by the notice
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Pursuant to the parties' joint motion to consolidate their
appeals, we decide the issues raised in both appeals in this
memorandum opinion.
requirement of Code § 65.2-600, (2) that the evidence was
insufficient to support the commission's finding that claimant's
shoulder injury and her gastrointestinal problems were causally
connected to a work-related accident, and (3) that the commission
erred when it awarded claimant permanent partial disability
benefits because the evidence was insufficient to prove that she
had reached maximum medical improvement. 2
Claimant contends that the evidence was insufficient to
support the commission's finding that she was able to return to
her pre-injury duties on July 25, 1994. For the reasons that
follow, we affirm.
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). As
the trier of fact, the commission determines the weight of the
evidence and the credibility of the witnesses. See Uninsured
Employer's Fund v. Mounts, 24 Va. App. 550, 559, 484 S.E.2d 140,
2
Employer also contends that the review opinion of the full
commission is illegal and invalid because the composition of the
commission that decided this case violated Code § 65.2-200,
§ 65.2-704, and § 65.2-705. However, the record does not
indicate that employer ever informed the full commission of its
objection to its decision on this ground. The record indicates
that employer received a copy of the commission's decision on May
5, 1997 and that the decision clearly indicated that Deputy
Commissioner Dely participated in the full commission's review of
this case. The record does not indicate that employer ever filed
a motion to reconsider or set aside the full commission's
decision. Because employer did not raise this argument before
the commission, we cannot consider it for the first time on
appeal. See Rule 5A:18; Green v. Warwick Plumbing & Heating
Corp., 5 Va. App. 409, 412-13, 364 S.E.2d 4, 6 (1988).
2
144 (1997). If there is evidence or reasonable inferences that
can be drawn from the evidence to support the commission's
findings, they will not be disturbed on appeal, even though there
is evidence in the record to support a contrary finding. See
Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276,
279, 348 S.E.2d 876, 877 (1986); see also Manassas Ice & Fuel Co.
v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991); Code
§ 65.2-706(A).
I.
NOTICE
Employer contends that claimant failed to satisfy the notice
requirement of Code § 65.2-600 and that the commission erred when
it concluded that employer waived its right to raise claimant's
lack of notice as a defense. We disagree.
Under Code § 65.2-600(A) and (D), an injured employee is
required to give his or her employer a "written notice of the
accident" "within thirty days after the occurrence of the
accident . . . ." However, under Rule 7.2 of the Rules of the
Workers' Compensation Commission, the commission has discretion
to find that an employer has waived its "notice defense" under
Code § 65.2-600 as a sanction for failing to "post and keep
posted, conspicuously, in the . . . place of business at a
location frequented by employees, notice of compliance with the
provisions of the Act."
Regardless of whether claimant's oral notice of her accident
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on June 29, 1994 to Nurse Keen and Keen's subsequent conversation
with Dr. Bailey were sufficient to satisfy Code § 65.2-600, we
hold that the commission did not err when it concluded that
employer waived its right to raise the "notice defense" by
failing to comply with Rule 7.2. The commission's finding that
employer failed to post the notice required by Rule 7.2 is
supported by claimant's testimony, which the commission deemed
credible. Furthermore, we cannot say that the commission's
decision to impose the sanction provided by Rule 7.2 was an abuse
of discretion.
II.
CAUSATION
Employer contends that the commission erred when it
(1) found that claimant's shoulder injury resulted from the
alleged accident on June 29, 1994 and (2) found that claimant's
gastrointestinal problems were causally related to Dr. Bailey's
medical treatment of claimant's shoulder on June 29, 1994. We
disagree.
Claimant had the burden of proving by a preponderance of the
evidence that she suffered "an injury by accident arising 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); Code
§ 65.2-101. "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
4
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) (emphasis in original). In
addition, an employer is responsible for medical expenses that
are (1) causally related to the injury, (2) medically necessary,
and (3) performed pursuant to a referral from the treating
physician, an emergency, or the permission of the employer,
insurer, or the commission. See Breckenridge v. Marval Poultry
Co., Inc., 228 Va. 191, 194, 319 S.E.2d 769, 770-71 (1984); Volvo
White Truck Corp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 903,
906 (1985); Code § 65.2-603.
First, we hold that the commission's finding that claimant's
shoulder injury was causally related to her accident on June 29,
1994 was supported by credible evidence and is binding on appeal.
Claimant testified that she had never suffered a shoulder injury
prior to June 29, 1994. While working on June 29, 1994, claimant
stepped on a stool in order to reach a file that she was
retrieving for a nurse. After she retrieved the desired file,
the stool on which she was standing "gave away" and claimant
started to fall. As claimant attempted to grab the shelves
holding the files in order to stop her fall, she felt a "pop" and
a sharp pain in her left shoulder. The record established that
claimant's left shoulder and the use of her left arm have been
impaired ever since. The record contains no medical opinion
regarding the existence or nonexistence of a causative link
5
between claimant's accident on June 29, 1994 and her shoulder
problems. However, a claimant is not required to produce a
physician's opinion in order to prove causation. See Dollar
General Store v. Cridlin, 22 Va. App. 171, 176-77, 468 S.E.2d
152, 154-55 (1996). "The testimony of a claimant may . . . be
considered in determining causation, especially where the medical
testimony is inconclusive." Id. at 176, 468 S.E.2d at 154.
Claimant's testimony regarding her accident and the medical
history of her shoulder were sufficient to support the
commission's finding that her shoulder problems were caused by
her accident on June 29, 1994.
In addition, the commission's finding that claimant's
anemia, gastrointestinal bleeding, and prepyloric ulcer were
caused by Dr. Bailey's treatment of her shoulder on June 29, 1994
was likewise supported by credible evidence. 3 Although Dr. Rolen
opined that claimant's hospitalization in July 1994 was "in no
way related or necessitated by her shoulder injury or the
treatment of her shoulder injury by Dr. Bailey," Dr. Clary opined
that the medicines prescribed by Dr. Bailey were "the probable
cause" of her gastrointestinal problems. In its role as fact
finder, the commission was entitled to weigh the conflicting
3
Employer does not argue that the treatment of claimant's
gastrointestinal problems was either medically unnecessary or not
properly authorized. See Breckenridge v. Marval Poultry Co.,
Inc., 228 Va. 191, 194, 319 S.E.2d 769, 770-71 (1984); Volvo
White Truck Corp. v. Hedge, 1 Va. App. 195, 200, 336 S.E.2d 903,
906 (1985); Code § 65.2-603.
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medical evidence and to resolve the conflict between the medical
opinions in favor of claimant. "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). Because the record does not indicate that Dr. Clary's
opinion was speculative or otherwise legally incompetent, it is
sufficient to support the commission's finding of causation.
III.
PERMANENT PARTIAL DISABILITY
Employer argues that the commission erred when it awarded
permanent partial disability benefits to claimant because she had
not yet reached maximum medical improvement. We disagree.
Code § 65.2-503 provides benefits to indemnify injured
employees for permanent loss and disfigurement that is either
partial or total. See Tumlin v. Goodyear Tire & Rubber Co., 18
Va. App. 375, 380-81, 444 S.E.2d 22, 24-25 (1994). In order to
establish entitlement to benefits under Code § 65.2-503, a
claimant bears the burden of proving (1) that he or she has
suffered one of the losses enumerated in the statute and (2) that
the "incapacity is permanent and that the injury has reached
maximum medical improvement." County of Spotsylvania v. Hart,
218 Va. 565, 568, 238 S.E.2d 813, 815 (1977).
We hold that the commission's award of permanent partial
disability benefits was not erroneous. Credible evidence
supports its findings that claimant (1) suffered a permanent loss
7
covered by Code § 65.2-503 (2) after reaching maximum medical
improvement. Dr. McGarry opined on November 15, 1996 that
claimant "has reached maximal medical improvement" and rated the
permanent impairment of her upper left extremity at twenty
percent. In addition, claimant's refusal of the shoulder surgery
recommended by Dr. McGarry did not render her legally incapable
of proving that her partial disability was permanent. Dr.
McGarry advised claimant that the proposed surgery was risky and
that she "could lose more motion" in her arm. Based on the
information provided to claimant about the recommended surgery,
we cannot say that the commission erred when it concluded that
her refusal was justified. Cf. Holland v. Virginia Bridge and
Structures, Inc., 10 Va. App. 660, 662, 394 S.E.2d 867, 868
(1990).
IV.
LENGTH OF CLAIMANT'S DISABILITY
Claimant contends that the evidence was insufficient to
support the commission's finding that she was able to return to
her pre-injury duties on July 25, 1994. We disagree.
Because employer "prevailed" on this issue below, we view
the relevant evidence in the light most favorable to it.
We hold that credible evidence in the record supports the
commission's finding that claimant's pre-injury duties as an
appointment secretary were within the restrictions imposed by Dr.
Clary when he released claimant to work on July 25, 1994. When
8
he released claimant to work, Dr. Clary placed the following
restrictions on her activity:
[Claimant] was advised no work until 7/25/94
with no hard labor or lifting greater than 15
pounds of weight for three months, no
reaching overhead or stretching for extended
periods of time, no bending over for extended
periods of time, no climbing, and no
excessive hours of work per day.
Claimant testified that her position as an appointment secretary
was a "desk job" and that her duties entailed "[a]nswering the
telephone and making appointments on the computer." She
testified that, although she occasionally retrieved and returned
files for nurses, which did require her to reach overhead, on the
whole she did "very little filing." Claimant also testified that
she worked eight hours a day, four days a week. Dr. Bailey, who
owned employer, testified that claimant's duties "were basically
to answer the phone and to do scheduling" and that her job as an
appointment secretary was "primarily a desk job." Debra Bailey,
who was employer's administrator, testified that claimant's
specific duties did not include retrieving files for nurses.
Because credible evidence supports the commission's findings that
"overhead filing was [not] a requirement of [claimant's] job" and
that claimant was capable of performing her pre-injury work after
July 25, 1994, they are binding and conclusive on appeal.
For the foregoing reasons, we affirm the commission's award.
Affirmed.
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