COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
JERAL R. ROBBINS
MEMORANDUM OPINION * BY
v. Record No. 0354-97-3 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 30, 1997
PENN LINE, INC. and
HOME INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Paul L. Phipps (Lee & Phipps, P.C., on
brief), for appellant.
Monica L. Taylor (Thomas H. Miller; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.
Jeral R. Robbins contends that the Workers' Compensation
Commission erred in ruling that his change in condition
application was barred by res judicata. Robbins also contends
that the commission erred in ruling that he had not proved a
change in condition related to his injury by accident. For the
reasons that follow, we affirm the commission's denial of
compensation benefits.
Robbins sustained an injury to his back on January 31, 1995
when he fell on ice at work. At the evidentiary hearing on
Robbins' original claim for compensation, his employer, Penn
Line, Inc., stipulated that Robbins suffered an injury by
accident and defended on the ground that Robbins was not
incapacitated for work after March 1995. The evidence proved
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that Robbins was treated in the hospital emergency room and then
received treatment from Dr. Patrick Molony. Dr. Molony referred
Robbins to an orthopaedist and a neurosurgeon.
The orthopaedist diagnosed a mild sprain of the thoracic and
lumbar spine. After review of test reports, the orthopaedist
released Robbins to return to light duty work in March. Because
of continuing complaints of pain, Robbins revisited the
orthopaedist in late March and was informed that he could return
to light duty work on April 3. In May 1995, Dr. Molony opined
that Robbins was unable to return to work because of back pain
and noted that Robbins "needs neurosurgical evaluation."
Robbins was then tested and examined by several
neurosurgeons. In August 1995, Dr. Daniel Robertson reported "no
indication for neurosurgical intervention," noted that Robbins
had "reached maximum medical improvement," and transferred
Robbins back to Dr. Molony. Dr. Molony referred Robbins to
another neurosurgeon, Dr. Ken Smith, who diagnosed lumbar
spondylosis, low back pain and bilateral par defect. Dr. Smith
referred Robbins to Dr. John Marshall.
In December 1995, Dr. Marshall reviewed Robbins' medical
records, examined Robbins on two occasions and ordered further
testing. He diagnosed Robbins as suffering sensory peripheral
polyneuropathy. Dr. Marshall reported that he was "not convinced
that the current symptomatology represents continued sequela from
a 1/31/95 fall" and that "[t]he peripheral polyneuropathy . . .
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probably would not stem from the original fall." Dr. Marshall
also reported that testing would be required to "further define
the extent of the [polyneuropathy] pathology." Dr. Marshall
noted that Robbins was not disabled from work as a result of his
fall in January 1995 and stated that any restrictions from work
resulted from causes unrelated to Robbins' fall. He opined that
"[t]he peripheral polyneuropathy . . . probably would not stem
from the original fall as the extensive diagnosis involves
pathological processes which occur independent of acute trauma."
Based on the evidence at the hearing, the deputy
commissioner found that Robbins "was incapacitated for work as a
consequence of this accident through December 15, 1995 when Dr.
Marshall determined that [Robbins'] ongoing disability was not
related to the January 31, 1995 accident." Thus, the deputy
commissioner awarded Robbins temporary total disability benefits
from February 1, 1995 until December 15, 1995. Robbins did not
seek review of that ruling.
On May 2, 1996, Robbins filed an application for a change in
condition and sought benefits beginning on March 21, 1996 and
continuing thereafter. At the evidentiary hearing on this
application, Robbins testified that his pain had worsened since
January of 1996 and was constant. Robbins testified that the
pain was in his back muscles, that he had received cortisone
injections for spasms he was having in his back, and that he
began using a walker because the use of his cane put too much
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pressure on his back. Robbins also testified that he was being
treated for depression and anxiety caused by "the worrying and
the pressure."
The evidence proved that Robbins had continued to be treated
by Dr. Molony for his physical ailments and, in addition, had
begun to visit Dr. B. Wayne Lanthorn, a psychologist. Dr.
Lanthorn saw Robbins on April 12, 1996 and diagnosed Robbins as
having "Mood Disorder Due to Chronic Low Back Pain and
Limitations, With Depressive Features." Dr. Lanthorn wrote a
letter on July 31, 1996 in which he opined that "Robbins'
psychiatric difficulties are a direct result and followed an
injury that occurred to him while working." In August, Dr.
Molony also reported that "Robbins has been unable to work since
1-31-95 due to an injury on the job at that time."
On August 6, 1996, Dr. Marshall reviewed Robbins' history,
including the reports of Dr. Molony and Dr. Lanthorn, and
examined Robbins again. Dr. Marshall stated that he did "not
have any new recommendations from [his] 12/6 and 12/15/95
report[s]" and reiterated his opinion that Robbins' symptoms were
not all related to his work injury.
Based on this evidence, the deputy commissioner made the
following findings:
As Dr. Marshall's opinion as well as the
opinion of Dr. Molony are essentially
unchanged from their opinions previously
expressed and considered in the February 6,
1996 opinion, we conclude that their opinions
do not establish a change in condition
causally related to the January 31, 1995
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accident. It was found in the previous
opinion that [Robbins'] disability after
December 15, 1995 was unrelated to the
January 31, 1995 accident. It was found that
[Robbins'] ongoing disability was
attributable to causes other than the January
31, 1995 accident. Since that opinion was
not appealed, those findings are final and
binding.
. . . However, we do not believe that
. . . the previous . . . decision would
necessarily preclude finding a change in
condition based on psychological opinion;
however, in this case, Dr. Lanthorn's opinion
is of little probative value since he was not
provided with the medical records nor was he
aware of the previous finding that [Robbins']
disability after December 15, 1995 was caused
by factors other than the January 31, 1995
accident . . . . [Robbins'] claim must be,
and it hereby is, denied.
The full commission affirmed that decision.
"General principles of [workers'] compensation law provide
that '[i]n an application for review of any award on the ground
of change in condition, the burden is on the party alleging such
change to prove [the] allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted). "Unless
we can say as a matter of law that the evidence submitted by
[Robbins] was sufficient to sustain his burden, then the
Commission's finding . . . is binding and conclusive upon us."
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
When the deputy commissioner rendered a decision following
the evidentiary hearing on Robbins' initial claim for
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compensation for his injury by accident, the deputy commissioner
resolved a conflict in the medical opinions. Dr. Molony reported
that Robbins was disabled from employment and that his disability
was continuing. However, Dr. Marshall reported that Robbins'
disability from work as caused by his injury by accident of
January 1995 had resolved as of December 15, 1995 and that
Robbins' continuing disability was not related to the January
1995 work-related injury. The deputy commissioner accepted Dr.
Marshall's report and did not accept Dr. Molony's report. An
issue raised by conflicting medical opinions is a factual matter
to be resolved by the commission. City of Norfolk v. Lillard, 15
Va. App. 424, 429-30, 424 S.E.2d 243, 246 (1992). Robbins did
not appeal that factual finding, which was adverse to his claim
that his disability was continuing.
In his application for a change in condition, which
commenced the proceeding from which this appeal arises, Robbins
bore the burden of proving both that he suffered a change in
capacity to work and that the change was due to a condition
causally related to his compensable injury. See AMP, Inc. v.
Ruebush, 10 Va. App. 270, 273-74, 391 S.E.2d 879, 881 (1990).
However, Dr. Molony's reports fail to account for the deputy
commissioner's unappealed factual finding that Robbins "was
incapacitated for work as a consequence of [the January 1995
work-related] accident through December 15, 1995 when Dr.
Marshall determined that [Robbins'] ongoing disability was not
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related to the January 31, 1995 accident." Dr. Molony reported
in August 1996, that "Robbins has been unable to work since
1-31-95 due to an injury on the job at that time." To the extent
that Robbins sought to use that report to contradict the deputy
commissioner's previous ruling that the disability that Robbins
suffered at December 15, 1995 was unrelated to his work, the
commission correctly ruled that the deputy commissioner's ruling
was res judicata. See K & L Trucking Co. v. Thurber, 1 Va. App.
213, 218-20, 337 S.E.2d 299, 302-03 (1985).
Furthermore, the evidence proved that on August 8, 1996
Dr. Marshall reviewed the reports of Dr. Molony's examination of
Robbins after January 1996, and the reports of Dr. Lanthorn's
treatment of Robbins after January 1996. In addition, Dr.
Marshall examined Robbins. Based upon his review of the medical
reports and his examination of Robbins, Dr. Marshall reported
that Robbins' low back pain had resolved prior to his December
15, 1995 report, that Robbins' spondylolysis was not connected to
his work-related injury, that the etiology of Robbins' sensory
peripheral polyneuropathy was undetermined, and that he had
nothing further to add to his earlier report. The commission
again accepted Dr. Marshall's report and rejected Dr. Molony's
report concerning Robbins' injury.
In addition, the deputy commissioner found from the evidence
that Dr. Lanthorn had not reviewed Robbins' medical records and
was unaware that the commission had ruled that Robbins'
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disability at December 15 was unrelated to his work injury. On
review, the commission also found that Dr. Lanthorn's reports
noted that Robbins had nerve problems prior to his work-related
injury. Dr. Lanthorn's reports simply failed to make a causal
connection between Robbins' work-related injury and his current
psychological condition.
For these reasons, we hold that the evidence did not prove,
as a matter of law, that Robbins bore his burden of proving a
change in condition. Accordingly, we affirm the decision.
Affirmed.
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Jeral R. Robbins v. Penn Line and Home Indemnity
Combined Opinion