COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
INTERIM PERSONNEL
AND
ZURICH AMERICAN INSURANCE COMPANY MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
v. Record No. 2687-96-2 MAY 20, 1997
JAMES G. TURNER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
C. Ervin Reid (Wright, Robinson, Osthimer &
Tatum, on briefs), for appellants.
Zenobia J. Peoples for appellee.
Interim Personnel and Zurich American Insurance Company
(collectively "employer") appeal from a decision of the Workers'
Compensation Commission ("commission") holding them responsible
for the cost of James G. Turner's ("claimant") hip replacement
surgery. Employer contends that the commission erred in finding
that claimant's hip injury and need for hip replacement surgery
were causally related to his compensable injury by accident.
Finding no error, we affirm the commission's decision.
Background
On appeal, we review the evidence in the light most
favorable to the party prevailing below. See R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1990).
So viewed, the evidence established that claimant, who
worked as a temporary laborer for employer, sustained an injury
to his right leg in a work-related accident on September 13,
1995. He initially complained of a "popping" in his right thigh.
Claimant thought he had just pulled a muscle and did not
immediately seek medical attention. He continued working through
September 21, 1995, by which time the pain in his leg had
worsened to the point that his supervisor sent him home.
On September 27, 1995, the claimant formally notified the
employer of the injury, although he had reported it to his
supervisor on September 13, 1995. Employer made an appointment
for claimant to see Dr. Arthur D. Bragg at Metropolitan Hospital
on September 28, 1995. At the time, claimant complained of pain
in his right leg and in the right groin area. Dr. Bragg
diagnosed claimant as having an injured sartorius muscle in the
upper half of the right thigh.
Claimant sought medical attention again on October 2, 1995.
Claimant continued to complain of muscle pain in the right
thigh. The treating physician referred claimant to Dr. Vincent
Dalton, an orthopedist.
Claimant saw Dr. Dalton on October 4, 1995, and complained
of right hip pain. Dr. Dalton wrote that claimant's right hip
pain "began on 9-13-95 at work after he got trapped between two
pallets and suffered a twisting injury to his rt. hip." Dr.
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Dalton continued that "[x]-rays of the rt. hip show a rather
large area of what appears to be avascular necrosis [("AVN")]
with a large area of collapse and femoral-head incongruity. This
appears to be an acute subchondral collapse." Dr. Dalton
confirmed his diagnosis of osteonecrosis after reviewing the
results of an MRI conducted by Dr. Maurice F. Mullins on October
9, 1995. 2 On October 12, 1995, Dr. Dalton released claimant to
perform light duty work, but advised that claimant would require
hip replacement surgery in the near future.
Claimant had no prior history of hip problems. Theodora
Parham, claimant's former supervisor, testified that, prior to
September 13, 1995, claimant had not complained to her of hip or
groin pain. She also testified that he did not begin limping
until after the accident. On the day Parham sent claimant home
from work, he was in such pain that Parham "could literally
almost feel it [herself]."
At employer's request, Dr. Bernard Lublin
conducted a review of claimant's
medical records. In his subsequent
report, Dr. Lublin wrote:
Dr. Dalton's evaluation on 10/4/95 indicates
x[-]rays demonstrating "a large area of
2
Dorland's Illustrated Medical Dictionary, 26th ed. (1985)
defines necrosis as "the sum of the morphological changes
indicative of cell death and caused by the progressive
degradative action of enzymes . . . ." Dorland's further
identifies osteonecrosis as "death, or necrosis, of bone," and
avascular necrosis as cell death "due to deficient blood supply."
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collapse and femoral head incongruity[."]
This indicates a longstanding problem. . . .
This avascular necrosis, therefore,
pre-existed the work related injury, and
definitive treatment (i.e. total hip
replacement) is therefore treatment for a non
work related problem.
Dr. Lublin continued, however, that "[t]he injury of 9/13/95
caused an acute 'flare-up' of the avascular necrosis. The acute
flare-up is work related . . . ."
The deputy commissioner relied upon Dr. Lublin's report to
find that claimant failed to prove a causal connection between
the September 13, 1995 accident and the condition requiring the
hip surgery. The deputy commissioner also found "that Dr. Dalton
has [not] produced preponderating evidence, within reasonable
medical probability, that the needed total hip replacement is
from the 1995 accident."
In reversing the deputy commissioner on this issue, the full
commission noted that claimant had no prior history of hip
problems. The commission relied upon Dr. Dalton's opinion that
the accident triggered "an acute subchondral collapse" to find
that claimant met his burden of proving causation.
Analysis
"Pursuant to Code § 65.2-101, workers' compensation benefits
are extended only to injuries arising out of and in the course of
employment." Bartholow Drywall Co. v. Hill, 12 Va. App. 790,
793, 407 S.E.2d 1, 2 (1991). "Causation is an essential element
which must be proven by a claimant in order to receive an award
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of compensation for an injury by accident." AMP, Inc. v.
Ruebush, 10 Va. App. 270, 274, 391 S.E.2d 879, 881 (1990).
"The determination of causation is a factual finding that will be
upheld on appeal if credible evidence supports the finding."
Imperial Trash Serv. v. Dotson, 18 Va. App. 600, 603, 445 S.E.2d
716, 718 (1994).
Generally, when medical opinions conflict, we give greater
weight to the opinion of the treating physician. See id. at 606,
445 S.E.2d at 720. The commission relied upon the report of
claimant's treating orthopedist to find a causal connection
between the September 13, 1995 accident and claimant's AVN. This
finding is supported by claimant's testimony that he had no
history of hip problems before the accident, and is corroborated
by the testimony of claimant's immediate supervisor. Dr.
Dalton's opinion and the medical records provide credible
evidence to support the commission's finding that claimant's need
for hip replacement surgery is causally related to the September
13, 1995 injury by accident.
This result applies even were it to be conceded that
claimant's AVN was a pre-existing condition. "It is well
established that the employer takes the employee as the employer
finds that employee, even where the employee suffers from some
physical infirmity." Williams Industries, Inc. v. Wagoner, 24
Va. App. 181, 187-88, 480 S.E.2d 788, 791 (1997). "A finding
that a pre-existing condition was 'accelerated or aggravated' by
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an injury sustained in an industrial accident establishes a
causal connection between the injury and disability and the
'disability resulting therefrom is compensable under the Workers'
Compensation Act.'" Southern Iron Works Inc. v. Wallace, 16 Va.
App. 131, 134, 428 S.E.2d 32, 34 (1993) (quoting Olsten of
Richmond v. Leftwich, 230 Va. 317, 320, 336 S.E.2d 893, 895
(1985)).
"Even if the accident would not have been sufficient to
cause the injury in the absence of a preexisting disease, that
fact will not provide the employer with a defense." Kemp v.
Tidewater Kiewit, 7 Va. App. 360, 363-64, 373 S.E.2d 725, 726-27
(1988). See Ellis v. Commonwealth, 182 Va. 293, 305, 28 S.E.2d
730, 735-36 (1944) (finding since latent sarcoma only became
symptomatic after accident, it was impossible to separate injury
from the fall from aggravation of the latent sarcoma). "On the
other hand, an injury due solely to the natural progression of
the existing disease is not compensable." Pendleton v. Flippo
Construction Co., 1 Va. App. 381, 384, 339 S.E.2d 210, 212
(1986).
The commission accepted the testimony of claimant and his
witness and the opinion of Dr. Dalton in finding causation
between the September 13 accident and the need for hip
replacement surgery. While Dr. Lublin concluded that claimant's
AVN was a pre-existing condition, he was still of the opinion
that a causal link existed between claimant's September 13
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accident and the flare-up of the AVN. Accordingly, we find there
is credible evidence in the record to support the commission's
finding of causation between the work-related injury and the need
for hip replacement surgery.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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