Board of Supervisors of Henrico County v. Martin

Benton, J.,

dissenting.

We do not sit to examine the evidence and make findings of fact, nor do we sit to revise the Commission’s findings of fact when they differ from those we might have made. See Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). Our consideration of cases appealed from the Commission is circumscribed by the established rule that the Commission’s findings of fact are conclusive and binding on us when there is credible evidence in support of such findings. Code § 65.1-98; Celanese Fibers Co. v. Johnson, 229 Va. 117, 120-21, 326 S.E.2d 687, 690 (1985); Insurance Management Corp. v. Daniels, 222 Va. 434, 438-39, 281 S.E.2d 847, 849 (1981); Crisp v. Brown’s Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986); see McGregor v. Crystal Food Corp., 1 Va. App. 507, 509, 339 S.E.2d 917, 918-19 (1986).

Under the holding in Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977) the factual issue before the Commission was whether Martin’s injury on September 4 was a direct and natural result of his compensable injury of February 8, 1977 or whether instead it was a new and separate accidental injury. Id. at 214, 237 S.E.2d at 99. Both the deputy commissioner who heard the evidence and the full Commission on review resolved this factual issue and found that the September 4 incident was an aggravation of Martin’s prior accidental injury. The majority opinion concludes that no credible evidence supports the Commission’s finding of fact. The majority opinion also makes its own, contrary finding that the incident of September 4 was a separate and compensable accidental injury. I disagree with the majority’s conclusions.

The majority opinion concedes that “[tjhere is no question but that the knee gave way;” however, it then asserts that “it is uncontradicted that it gave way in some part because Mr. Martin had ‘slipped.’ ” The latter assertion constitutes fact-finding by the majority. Dr. Caspari, whose letters, reports and evidence were based upon his examination of Martin and his inquiry as to the cause of the accident, reported that the claimant’s knee “gave away posterolaterally.” The medical evidence provides a credible basis of support for the Commission’s conclusion that the Septem*148ber 4, 1981 incident was a natural and direct consequence of Martin’s earlier, compensable accidental injury. The deputy commissioner described her view of the evidence this way:

A careful and exhaustive study of the testimony and the medical records leaves little doubt that the claimant has a bad right knee and that every time it gives way it does more damage to the knee. Dr. Caspari in his deposition taken January 23, 1985 sets out in great detail the continuing problems the claimant has had with his right knee over the years. Commencing in 1973 and continuing up through the present time, Martin has been unable to go more than a few months without seeking treatment for his knee. Dr. Caspari described the claimant’s condition as a “whole progression of problems with the knee, each interrelated.” He further went on to explain that while there might have been some initial confusion that the September 1981 incident was a separate injury, in actuality it was an aggravation of his 1977 injury. The stabilizing structures in the knee, the subject of the claimant’s problems, work in concert and thus if one is injured or removed (as in the claimant’s case) the others become so overloaded that what might be a mild injury in a healthy knee causes a tear in a overloaded knee. And once this occurs there is a steady down hill course of further stretching out of the few remaining stabilizing structures thus causing a whole progression of problems with the knee, each interrelated.

The full Commission similarly viewed the medical evidence:

We have carefully reviewed the record in this case, including the medical reports and the deposition testimony of Richard B. Caspari, M.D., orthopedic surgeon. We note specifically that the claimant was seen on September 4, 1981 by Dr. Caspari, who submitted an Attending Physician’s Report which stated that the claimant “fell on (R) knee today and [it] gave way on him.” Dr. Caspari diagnosed a strain and also stated that x-rays taken of the claimant’s knee were interpreted to indicate that there was no change in the claimant’s knee. This physician performed an arthroscopic anterior cruciate ligament reconstruction of the right knee on February 28, 1984. Although there is evidence in the medical *149records that, as contended by defendant Lumbermen’s, the September 4, 1981 incident in the employment brought on yet another flare-up of knee complaints, we find, nevertheless, that the claimant’s ensuing condition was not the result of a new industrial accident but that it was a continuing consequence of the February 8, 1977 industrial accident and that it is, therefore, compensable as such.

The majority opinion’s finding that Dr. Caspari’s testimony was not in conflict with the evidence of a new “injury” does not mean that the evidence did not support the Commission’s findings. Moreover, I do not understand the majority opinion to state that Dr. Caspari’s evidence was not credible. The resolution of the medical evidence is left to the Commission, not us. Our review requires only that we determine whether this evidence was credible in support of the Commission’s findings.

Furthermore, the “uncontradicted” evidence on which the majority opinion relies is innocuous. Neither Martin’s nor the risk manager’s testimony indicates that the slippery floor caused the fall; nor is there any testimony that the knee “gave way in some part because Mr. Martin ‘slipped’,” as the majority opinion asserts. The majority opinion engages further in speculation and fact-finding when it finds that “[t]he slip put pressure on the weak knee.” These are findings that the Commission could have made if it had taken a different view of the evidence, but it did not.

The majority opinion also asserts that there was a “stipulation” that the incident of September 4 constituted a separate industrial accident. What the majority opinion characterizes as a “stipulation,” however, was nothing more than counsel’s theory of the claim, albeit an incorrect theory that would not serve Martin’s interests. There was no stipulation of issues of fact. Unlike the practice in civil cases, the Rules of the Industrial Commission provide:

[T]he Commission is not bound by statutory or common law rules of pleading or evidence, nor by technical rules of practice, but will conduct such hearings and make such investigations into the questions at issue in such manner as in its judgment are held adapted to ascertain and determine expeditiously and accurately the substantial rights of the par*150ties and to carry out the spirit of the Workers’ Compensation Act ....

Rule 1(A), Rules of the Industrial Commission. Rule 13(B) provides that an employee’s change-in-condition application must “state the change in condition relied upon.” Martin’s handwritten letter to the Commission, dated May 10, 1984, states: “This letter is to inform you that I have a pending claim on an old injury.” Contrary to the majority opinion’s assertion by reference to the first report of accident, the issue in the hearing before the deputy commissioner was not solely whether there was a new accident on September 4. The deputy commissioner opened the hearing by stating: “This matter comes before us on the claimant’s application filed May 11th, 1984 in which he alleges, I believe, a change in condition.” Moreover, counsel for the appellants vigorously cross-examined Martin and justified his injury to pre-1981 events this way:

The relevancy, if Your Honor pleases, is that this man is claiming he’s disabled from a slip and a fall in September, that he was not disabled but three or five days. He has injuries and surgery back starting in 1974 and our whole plan here is, if Your Honor pleases, is to show that the man has had a bad knee, and that it was not stable and even Dr. Caspari said he had a bad knee and it was a continuing process and I think we’re entitled to provide the Commission with the full background.
# * *
In 1976 he had a injury and had surgery. That’s what I—I want to bring out to coincide with Dr. Caspari’s reports that the man had a bad knee and it was getting progressively worse and he couldn’t say what—

The appellants certainly had adequate notice of the import of Martin’s claim. See Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 415-18, 270 S.E.2d 723, 725-27 (1980). Thus the majority opinion’s reliance on the employer’s first report of accident in support of its “stipulation” theory is simply unwarranted.

Furthermore, I believe that the Commission did not err in relying upon the medical evidence and Martin’s account of the incident as reported to Dr. Caspari. Rule 1(A) permits the use of *151hearsay evidence and does not compel the Commission to adopt the strict view espoused by the majority opinion.

The medical evidence in this record shows that Martin was treated on many occasions by Dr. Caspari prior to the September 1981 incident because of problems with his right knee which resulted from the February 8, 1977, compensable accident. He was treated by Dr. Caspari on December 5, 1980, and January 12, 1981, because of pain, popping and “giving away in the knee.” On March 9, 1981, Dr. Caspari wrote to the employer, stating: “[Tjoday, he continues to have swelling in the knee and occasional popping and giving away of the knee.” On June 26, 1981, Dr. Caspari reported the worsening condition of Martin’s knee. Dr. Caspari’s report of September 4, 1981, states that Martin’s fall was caused by his knee giving way. In view of Martin’s report of the incident to Dr. Caspari, the testimony of Dr. Caspari regarding causation, and the undisputed prior instances in which Martin’s knee “gave away,” I believe that the Commission’s determination that the fall was caused by the knee giving away rather than by a slippery floor was a finding of fact supported by credible evidence and, thus, conclusive on appeal. See Reserve Life Insurance Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968).