Leadbetter, Inc. v. Penkalski

BENTON, Judge,

dissenting.

An employee is entitled to recover compensation for an aggravation or exacerbation of a compensable injury by accident even when the event that caused the aggravation or exacerbation did not involve the workplace. See 1 Arthur Larson, Workmen’s Compensation Law, §§ 13.00-13.24 (1994). See also Wilson v. Workers’ Compensation Com’r, 174 W.Va. 611, 328 S.E.2d 485, 489 (W.Va.1984). “It is well established that where ... the chain of causation from the original industrial injury to the condition for which compensation is sought is direct, and not interrupted by any intervening cause attributable to the claimant’s own intentional conduct, then the subsequent [condition] should be compensable.” American Smelting and Refining Co. v. Industrial Comm’n, 25 Ariz.App. 532, 544 P.2d 1133, 1135 (1976). See also Department of Highways v. McCoy, 301 Ky. 765, 193 S.W.2d 410 (1946) (an employee who suffered a work-related hernia was entitled to receive compensation for an aggravation of the hernia caused by the inability to operate due to a subsequently developed unrelated onset of tuberculosis). Recovery of compensation for a subsequent aggravation is barred only if the subsequent aggravation “is the result of an independent intervening cause attributable to claimant’s own intentional conduct.” 1 Larson, supra, at § 13.00. Numerous courts have recognized this principle with factual variations “but as long as the causal connection is in fact present the compensability of the subsequent condition is beyond question.” Id. at § 13.11(b) (footnote omitted).

Furthermore, another well established principle holds that “where a disability has two causes: one related to the employment and one unrelated [to the employment] ... full benefits will be allowed.” Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 803 (1981). This principle requires the *464commission to award compensation because “the employment is a contributing factor to the disability.” Id.; see also Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28-29, 294 S.E.2d 805, 807-08 (1982). These two principles intersect in this case and mandate an affirmance of the commission’s decision.

The evidence in this case proved that Penkalski suffered a compensable work-related injury when he fell and broke both ankles. Dr. Irby’s reports document that Penkalski suffered chronic pain and swelling after he broke his ankles. After Penkalski had begun to make progress and was walking, Dr. Irby ordered him to begin exercising his ankles. His injury was diagnosed, however, by Dr. Irby to be a permanent partial disability.

During the period of his disability, Penkalski suffered a heart attack unrelated to his work. When Penkalski was being treated for his heart problem, a physician who was operating on him caused arterial plaque to be loosened. The plaque settled in Penkalski’s feet and caused injury to his toes and feet. As a result of the injuries the plaque caused to his feet, Penkalski was unable to perform exercises that Dr. Irby prescribed for his ankles.

Dr. Irby reported that these complications from the heart operation caused Penkalski to suffer foot and toe problems. The severity of those problems prevented Penkalski from exercising his ankles and resulted in a marked decrease in his ankle motion. Thus, Penkalski’s ankle condition deteriorated and further increased his disability. As a consequence, Dr. Irby barred him from “doing any job where he has to do prolonged standing or walking due to his ankles.” Dr. Irby reported that Penkalski was totally disabled as a result of his work-related injury and the exacerbation of that injury. Based upon Dr. Irby’s reports, the commission found that Penkalski’s work-related ankle disability was exacerbated by and was worsened as a result of the effect of the foot ischemia.

The majority’s decision disregards Dr. Irby’s medical opinions (1) that Penkalski’s work-related disability was exacerbated by the complications that flowed from Penkalski’s heart *465condition, and (2) that Penkalski’s current disability has two causes. The commission based its opinion upon its acceptance of Dr. Irby’s medical opinions. When a commission’s opinion is based upon the results of a medical diagnosis, that resolution is a factual finding based on credible evidence that binds this Court. See Rose v. Red’s Hitch & Trailer Serv., Inc., 11 Va.App. 55, 60, 396 S.E.2d 392, 395 (1990).

American Furniture Co. v. Doane, 230 Va. 39, 334 S.E.2d 548 (1985), has no bearing on the facts in this case. In Doane, the employee suffered a work-related injury to her back. After the employee had surgery and récovered, the attending physician released the employee to return to light duty work. Id. at 41, 334 S.E.2d at 549-50. The employee failed to report for light duty work because of impairments to her hand and arm that were “unrelated” to the back injury. Id. The two conditions were “unrelated” because they neither flowed from the same work-related cause nor resulted in disability to the same body member. Thus, the Court held that “Doane failed to carry her burden of persuasion to show the necessary causal connection between her arm impairment and her compensable injury.” Id. at 43, 334 S.E.2d at 550-51.

In Eppling v. Schultz Dining Programs, 18 Va.App. 125, 442 S.E.2d 219 (1994), this Court applied Doane in a case where an employee was terminated because of excessive absences caused by health problems that were “unrelated” to her work-related injury. Id. at 128, 442 S.E.2d at 221. No evidence in that case proved that Eppling’s “unrelated” problem had exacerbated or aggravated the work-related injury.

Dr. Irby’s report clearly states the relationship between the result of the heart complication and the work-related injury. Thus, the commission had a medical basis upon which to conclude that as a result of Penkalski’s heart attack, Penkalski was unable to continue his exercises and lost further motion in his injured ankles. Dr. Irby’s report stated that Penkalski was “disabled from any work that requires prolonged standing and walking.” He further reported that the disability resulted from two causes, “one is work-related and one is not.” In *466addition, the commission specifically quoted from Dr. Irby’s May 27,1998, report in finding that Penkalski had proved that the non-work-related condition contributed to and aggravated his compensable injury.

When, as in this case, the medical evidence proved that the work-related disability was aggravated or exacerbated by the non-work-related problem, the resulting disability is compensable. Furthermore, Dr. Irby’s medical opinion established that Penkalski’s inability to perform sustained standing and walking was a disability that had two causes. One cause was the worsening condition of Penkalski’s ankles, the work-related injury. Because the record contains credible evidence to support the commission’s findings, I would affirm the commission’s award. I therefore, dissent.