COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BROWN & ROOT, INC.
AND
ARGONAUT INSURANCE COMPANY
v. Record No. 1548-95-4 MEMORANDUM OPINION *
PER CURIAM
LUTHER H. RICHARDS DECEMBER 19, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark D. Crawford; Friedlander, Misler, Friedlander,
Sloan & Herz, on briefs), for appellants.
(Gregory J. Harris, on brief), for appellee.
Brown & Root, Inc. and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that (1) Luther H. Richards sustained
a disabling injury by accident arising out of and in the course
of his employment on July 13, 1994; and (2) employer was
responsible for the cost of medical treatment rendered to
Richards by physicians in Texas. 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.
Injury By Accident and Disability
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In
order to carry his burden of proving an 'injury by accident,' a
claimant must prove that the cause of his injury was an
identifiable incident or sudden precipitating 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). We must uphold the commission's findings of fact if
they are supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The determination of causation is a factual finding. Ingersoll-
Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817
(1989).
Richards testified that on July 13, 1994, as he climbed off
of a motor grader, he missed a step to the blade, and caught his
entire weight with his arms. He pulled something in his back and
neck and he felt a burning sensation from the back of his head to
his feet. Richards told his coworkers that he had hurt himself.
Although he continued to try to work, he was in pain the rest of
the day. That evening, Richards felt dizzy as he stood to go to
the dinner table. Later, when he got out of bed to turn off a
light, he felt back, shoulder and neck pain, and he lost control
of his arms and legs.
Dr. Anil Patel treated Richards the following day. Richards
reported a history of slipping from a grader as he missed a step.
Dr. Patel referred Richards to Dr. Ian Wattenmaker, a
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neurosurgeon. Dr. Wattenmaker noted a history consistent with
Richards' testimony as to how the accident occurred. Dr.
Wattenmaker also noted that, several times each day since the
incident, Richards had felt an electric burning sensation that
started at his neck and radiated into all extremities. Following
his review of an MRI, Dr. Wattenmaker diagnosed cervical
myelopathy, C5-6 spondylosis and disk herniation with cord
compression, and C4-5 disk herniation with cord compression. Dr.
Wattenmaker opined that Richards' back and neck symptoms had
worsened since the July 13, 1994 accident, and Dr. Wattenmaker
performed a diskectomy at C4-5 and C5-6 and interbody cervical
fusions at C4-5 and C5-6. Dr. Wattenmaker opined that Richards'
soft disc herniation was causally related to the July 13, 1994
injury by accident.
The evidence supports the commission's finding that
Richards' proved he sustained a compensable neck injury on July
13, 1994. Richards' testimony and the medical records and
opinions of Dr. Wattenmaker provide credible evidence to support
the commission's findings. Richards testified to an identifiable
incident, which was consistent with the medical histories. Dr.
Wattenmaker linked Richards' herniated disc and resulting surgery
and disability to this incident.
We find no merit in employer's argument that Dr.
Wattenmaker's opinion was not credible because he did not have a
complete medical history. Dr. Wattenmaker's records indicate
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that he was aware that Richards suffered from numerous incidents
of pain and a burning sensation after the initial injury.
Moreover, although Richards had pre-existing cervical
spondylosis, Dr. Wattenmaker attributed the disc herniation and
subsequent surgery to the July 13, 1994 injury by accident.
Although Dr. Charles Clegg, a chiropractor, had earlier
treated Richards for back and neck pain, Dr. Clegg reported that,
after treatment with physical therapy and heat, Richards "was
doing well" upon release on May 11, 1994. Richards had been
doing well since May 11, 1994 and was able to work as a heavy
equipment operator before July 13, 1994. "[T]he employer takes
the employee as he is and if the employee is suffering some
physical infirmity, which is aggravated by an industrial
accident, the employer is responsible for the end result of such
accident." McDaniel v. Colonial Mechanical Corp., 3 Va. App.
408, 414, 350 S.E.2d 225, 228 (1986).
Medical Treatment in Texas
Where an employer denies a claim and refuses to pay
compensation to an injured employee, the employee is permitted to
select his own physician. Trammel Crow Co., Inc. v. Redmond, 12
Va. App. 610, 615, 405 S.E.2d 632, 635 (1991). The employer
denied Richards' claim. Richards was advised by Dr. Wattenmaker
to seek medical care in Texas. Consequently, Richards was free
to select his own physician. The commission did not err in
holding employer responsible for the cost of medical treatment
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rendered to Richards in Texas.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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