COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DAVID ALLEN ARTRIP
MEMORANDUM OPINION *
v. Record No. 1370-96-3 PER CURIAM
DECEMBER 10, 1996
KERNS BAKERIES, INC.
AND
THE HOME INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gerald F. Sharp; Browning, Lamie & Sharp, on
brief), for appellant.
(L. Johnson Sarber, III; Johnson, Ayers &
Matthews, on brief), for appellees.
David Allen Artrip ("claimant") contends that the Workers'
Compensation Commission erred in finding that (1) his September
18, 1992 automobile accident caused a significant exacerbation of
his compensable July 13, 1992 back injury; and (2) his settlement
of the third-party action related to the automobile accident
without the knowledge of Kerns Bakeries, Inc. ("employer")
adversely affected employer's subrogation rights, thereby barring
claimant from receiving further compensation benefits. 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. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
So viewed, the evidence established that on July 13, 1992,
claimant sustained a compensable back injury as the result of a
fall at work. On August 19, 1992, Dr. Timothy G. McGarry, an
orthopedist, diagnosed claimant as suffering from lumbosacral
pain. A CT myelogram ordered by Dr. McGarry showed evidence of a
right-sided L5-S1 disc herniation. On August 28, 1992, after
discussing treatment options with Dr. McGarry, claimant chose to
continue with conservative treatment rather than undergo surgery.
On September 18, 1992, claimant was involved in a
non-work-related automobile accident. On September 25, 1992,
Dr. McGarry examined claimant and noted that claimant "was doing
better, but was then involved in a motor vehicle accident last
Friday when he had acute exacerbation of his pain again." On
September 25, 1992, claimant began complaining of left leg pain
and cramping in both legs. He had not exhibited these symptoms
prior to the automobile accident. In a letter dated September
25, 1992 from Dr. McGarry to Dr. Galen Smith, Dr. McGarry wrote
that claimant had suffered from increased back pain since the
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automobile accident. On October 16, 1992, Dr. McGarry again
noted that claimant "now has problems on his left side. He
reports pain in his left side with radiating pain down to his
knee."
On December 3, 1992, Dr. Neal A. Jewell, an orthopedic
surgeon, examined claimant and diagnosed a moderately large
central-to-right L5-S1 herniated disc. Claimant's condition
continued to worsen and, on June 7, 1993, Dr. Jewell performed
surgery on claimant's back. On December 15, 1995, in response to
questions posed by claimant's counsel, Dr. McGarry opined that
the automobile accident had not adversely effected claimant's
physical condition nor impeded his natural recovery from the
work-related injury.
The commission ruled that the August 18, 1992 automobile
accident caused a significant exacerbation of claimant's
compensable back injury. In so ruling, the commission relied
primarily upon the findings of Drs. McGarry and Jewell. The
notations made by these physicians contemporaneous with their
examinations provide credible evidence to support the
commission's finding. Moreover, the commission, in its role as
fact finder, was entitled to give more weight to Dr. McGarry's
earlier notes than to his December 1995 response to claimant's
counsel's question. "Medical evidence is not necessarily
conclusive, but is subject to the commission's consideration and
weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App.
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675, 677, 401 S.E.2d 213, 215 (1991). Because credible evidence
supports the commission's finding that the August 18, 1992
automobile accident caused a significant exacerbation of
claimant's compensable July 13, 1992 back injury, it is binding
upon this Court.
II.
Code § 65.2-309(A) provides that "[a] claim against an
employer . . . shall operate as an assignment to the employer of
any right to recover damages which the injured employee . . . may
have against any other party . . . , and such employer shall be
subrogated to any such right . . . ." In applying this statute,
we held that "the employee may not pursue his common law remedy
in such a manner or settle his claim to the prejudice of the
employer's subrogation right and thereafter continue to receive
workers' compensation benefits." Wood v. Caudle-Hyatt, Inc., 18
Va. App. 391, 397, 444 S.E.2d 3, 7 (1994). Furthermore, we
stated:
An employee necessarily prejudices his
employer's subrogation rights and, thus, is
barred from obtaining or continuing to
receive benefits under a Workers'
Compensation Award when an employee settles a
third-party tort claim without notice, or
without making a claim for workers'
compensation benefits, or without obtaining
the consent of the employer.
Id. (citing Stone v. George W. Helme Co., 184 Va. 1051, 1060, 37
S.E.2d 70, 75 (1946)). This rule applies whether the third party
tort feasor causes the original compensable injury or a later
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aggravation of that injury. Barnes v. Wise Fashions, 16 Va. App.
108, 111, 428 S.E.2d 301, 302 (1993). 1
Claimant admitted that, after receiving compensation
payments for nine and one-half weeks out of a possible 500 weeks,
he settled the third-party claim related to the injuries he
sustained in the automobile accident without employer's knowledge
and consent. This evidence supports the commission's finding
that claimant's actions clearly prejudiced employer.
Accordingly, the commission did not err in terminating claimant's
benefits under the Act.
For the reasons stated, we affirm the commission's decision.
Affirmed.
1
In City of Newport News v. Blankenship, 10 Va. App. 704,
707, 396 S.E.2d 145, 146-47 (1990), we held that compensation
benefits would not be terminated where the exacerbation of the
compensable injury was so minor that the settlement of a
third-party claim related to the exacerbation did not prejudice
the employer. Because we find that credible evidence supports
the commission's finding that the August 18, 1992 automobile
accident caused a significant exacerbation of claimant's
compensable back injury, the rule enunciated in Blankenship does
not apply to this case.
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