COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
VIRGINIA FORKLIFT, INC. and
MERCHANTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 2379-95-3 JUDGE JAMES W. BENTON, JR.
JUNE 4, 1996
RAYMOND J. POWLICK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Rodney A. Satterwhite (Dana L. Rust; Jonathan
P. Harmon; McGuire, Woods, Battle & Boothe,
L.L.P., on briefs), for appellants.
T. Bryan Byrne for appellee.
Virginia Forklift, Inc., appeals from the commission's
denial of its application for a change in condition. It contends
that the commission (1) ignored the treating physician's opinion
that Raymond J. Powlick could return to his regular job, (2)
found without supporting medical evidence that Powlick's later
fall exacerbated his work-related injury and, (3) erroneously
required Virginia Forklift to prove that Powlick had fully
recovered from both injuries. We affirm the commission's
decision.
I.
On appeal, this Court is required to construe the evidence
in the light most favorable to the party prevailing below. R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
788, 788 (1990). So viewed, the evidence proved that on November
28, 1994, Powlick suffered a work-related injury when he slipped
on a wet spot while exiting a service truck. Dr. Gary McGowan
treated Powlick for severe pain in his right hip and the right
side of his lower back. Further tests revealed a bulging of the
disc at the L4-5 level and a less pronounced bulging at the L3-4
level. Dr. McGowan diagnosed a right hip strain, acute lumbar
strain, and bulging lumbar discs. He prescribed physical therapy
and medication.
Virginia Forklift accepted the injury as compensable and
paid benefits pursuant to a memorandum agreement. The commission
approved the memorandum of agreement and awarded temporary total
disability to Powlick beginning December 6, 1994.
On February 13, 1995, Dr. George Johnson, a neurosurgeon,
examined Powlick. He noted that Powlick "complain[ed] of
constant, severe pain in the bilateral paralumbar region and
right gluteal area and some into the left hip . . . [and]
intermittent radiating pain into the lateral aspect of the right
thigh." Dr. Johnson also noted that Powlick "is quite tender in
the sacroiliac joint area, particularly on that right side."
Although he noted that Powlick had bulging disc at L4-5 and L3-4,
he had no explanation why Powlick had not responded to treatment.
Dr. Johnson diagnosed "lumbar sprain/strain" and had no
neurosurgical recommendations. He noted an expectation that
Powlick would obtain relief "in a relatively short period of
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time, with the therapy and exercises."
On February 14, 1995, the day after Dr. Johnson examined
him, Powlick fell in a grocery store and injured his back.
Powlick reported to his doctor "upper back, lower back, left
hip/leg pain" as a result of the fall. An MRI report revealed
that Powlick had "central and left-sided herniation of the L3-4
disc."
A report from a spine therapist indicated that Powlick was
restricted to carrying no more than thirty-five pounds. On a
functional capacity form dated February 21, 1995, Dr. Johnson
restricted Powlick from lifting more than fifty pounds but stated
he could return to his former job. Based upon Dr. Johnson's
report, Virginia Forklift filed an application for hearing and
suspension of benefits. Following its review of Powlick's
response and the medical records, the commission denied the
application.
On March 6, 1995, Dr. McGowan reported that Powlick had "non
work related injuries (cervical strain, hip strain, lumbar
strain, lumbar disc disease [herniation] which render him unable
to work at this time)." On that same form, he indicated that
Powlick could return to modified work "as related to work related
injuries." On March 20, 1995, Dr. McGowan noted that Powlick
could return to his regular work "as related to work related
injury" but also noted that Powlick has "non work related
injuries that may preclude work."
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Based upon Dr. McGowan's report, Virginia Forklift filed
another application for hearing and suspension of benefits. The
commission granted this application for hearing. However,
following a review of all the reports, the deputy commissioner
found that Powlick exacerbated his work-related injury when he
fell on February 15, and that the evidence failed to prove that
he had recovered and was able to return to work. The commission
affirmed those findings.
II.
Virginia Forklift's application for hearing alleged that
Powlick was able to return to work. Virginia Forklift,
therefore, was required to prove a change in condition by a
preponderance of the evidence. Pilot Freight Carriers, Inc. v.
Reeves, 1 Va. App. 435, 438-439, 339 S.E.2d 570, 572 (1986). To
bear its burden of proof, Virginia Forklift had "to establish by
a preponderance of the evidence . . . that [Powlick] . . . was
able fully to perform the duties of his preinjury employment."
Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d 605, 607
(1981). Furthermore, the principle is well established that the
commission's findings of fact when based upon credible evidence
are conclusive and binding on appeal. Fairfax Hospital v.
DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722 (1980).
The medical evidence in the record was sufficient to prove
that Powlick's fall on February 15, 1995, exacerbated his
existing work-related injuries. The evidence proved that
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Powlick's existing left side injuries and lumbar injuries were
worsened by the intervening fall. Some of the injuries that
Powlick suffered in the intervening fall occurred in the same
area of his body that was earlier injured. Dr. McGowan's March
20 report clearly shows that the areas affected by the
intervening fall were still disabling. Thus, the commission did
not err in finding that Powlick continued to experience
disability and was entitled to continuing compensation. See
DeLaFleur, 221 Va. at 409, 270 S.E.2d at 722.
Furthermore, the record contains credible evidence to
support the commission's finding that Powlick's work was
strenuous and required him to lift over one hundred pounds. The
reports by the spine therapist and Dr. Johnson establish that
Powlick was unable to carry in excess of thirty-five to fifty
pounds. Thus, credible evidence in the record also supports the
commission's finding that as a result of the February 15 fall,
Powlick exacerbated his work-related injury. The record supports
the commission's findings that as a result of that exacerbation
Powlick was unable to perform the duties of his preinjury
employment. See Rogers, 222 Va. at 805, 284 S.E.2d at 607.
For these reasons, we affirm the commission's decision.
Affirmed.
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