Leon Strom v. Transdev Services, Inc. and Old Republic Ins. Co. ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges AtLee and Friedman
LEON STROM
MEMORANDUM OPINION
v. Record No. 0095-22-4 PER CURIAM
JANUARY 24, 2023
TRANSDEV SERVICES, INC. AND
OLD REPUBLIC INS. CO.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Leon Strom, on brief), pro se.
(Danielle A. Takacs, on brief), for appellees. Appellees submitting
on brief.
Leon Strom appeals a decision of the Workers’ Compensation Commission finding that
he failed to prove a compensable injury by accident. After examining the briefs and record in this
case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly
without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). For the following reasons, we affirm the
Commission’s decision.
BACKGROUND
“On appeal from a decision of the Workers’ Compensation Commission, the evidence and
all reasonable inferences that may be drawn from that evidence are viewed in the light most
favorable to the party prevailing below.” Anderson v. Anderson, 65 Va. App. 354, 361 (2015)
(quoting Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83 (2005) (en banc)). Strom worked as a
bus driver for Transdev Services, Inc. (“employer”). On October 16, 2020, Strom was pulling out
from a bus stop when a car collided with the bus. Surveillance footage from inside and outside the
 Pursuant to Code § 17.1-413, this opinion is not designated for publication.
bus depicted Strom and the accident. Both angles showed Strom calmly exiting the bus, speaking
with the driver of the car, and returning to the bus to collect some documents. Strom experienced
no pain or discomfort immediately after the accident.
Before the accident, Strom had suffered chronic pain following motor vehicle accidents in
2003 and 2019. He had pain in his neck and back following the 2019 accident. Strom continued to
have “problems” with his lower back, neck, and right arm in 2020. Dr. Bryan Senisi, who evaluated
Strom on October 2, 2020, noted that his “chronic back pain” was “likely related to being a
multi[-]sport athlete in his youth.” Strom was on modified work duty from October 2, 2020,
through October 15, 2020, and was scheduled for physical therapy on October 20, 2020. October
16, 2020, the day of the bus accident, was the first day he had been released to work at full capacity.
On October 30, 2020, Strom sought medical treatment from Abigail Wong, PA-C. Wong
noted that Strom had pain in his left shoulder, neck, and lower back after a motor vehicle accident
on October 16, 2020 and that his injuries resulted from the accident. She diagnosed him with
lumbar strain and left shoulder strain, referred him to physical therapy, and released him to modified
work. Wong, who saw Strom again in early November 2020, did not mention Strom’s 2019
automobile accident or pre-existing back, neck, or right arm problems in Strom’s records.
Strom saw Dr. Sam Marco on November 5, 2020, complaining of neck, left shoulder, and
lower back pain. Dr. Marco noted that Strom had “[n]o significant past medical history.” During a
November 25, 2020 visit, Strom denied any history of neck pain. Strom continued to see Dr. Marco
through December 2020. Dr. Marco ordered an MRI of Strom’s spine and referred him to an
orthopedist.
On December 1, 2020, orthopedist Dr. Hajeer Sabet reviewed Strom’s cervical and lumbar
MRIs and diagnosed him with cervical and lumbar radiculopathy and sprain, as well as cervical
spinal stenosis, L4-L5 facet pain with grade 1 spondylolisthesis, and lumbar spasms. Although
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Dr. Sabet noted that Strom sustained injuries to his neck and back in the October 16, 2020 motor
vehicle accident, he did not mention Strom’s 2019 accident or prior back problems. In Dr. Sabet’s
opinion, Strom could not return to work.
On December 14, 2020, and on March 17, 2021, Strom filed claims for benefits alleging
injury by accident to his neck, back, left shoulder, and left arm as a result of the October 16, 2020
accident. He sought lifetime medical benefits and total disability benefits beginning December 9,
2020.
Following a hearing, the deputy commissioner found that Strom failed to prove he had
suffered a compensable injury by accident. The deputy commissioner was persuaded by
Dr. Senisi’s October 2, 2020 note that Strom “had been ‘struggling with [lumbar radiculopathy] for
years.’” Moreover, the deputy commissioner concluded that Strom’s post-accident medical
providers were unaware of his history of neck and back problems following his April 2019 motor
vehicle accident because they did not note them in his history. The deputy commissioner
emphasized that Strom testified his symptoms emerged approximately a week after the accident, but
he told Wong that his left shoulder and lower back pain had been present “since” his October 16,
2020 accident. Dr. Sabet’s notes also contained no mention of the one-week delayed onset of
symptoms. Accordingly, the deputy commissioner rejected Wong’s opinion that Strom’s injuries
resulted from the accident because it was “based upon an incomplete or inaccurate medical history.”
The deputy commissioner rejected Strom’s claim that his neck and shoulder problems resulted from
the accident “in view of the delayed onset and the absence of any provider’s explanation” for the
delay. He also rejected Strom’s claim that the accident caused his lower back injury, citing his
“chronic” pre-existing back problems and the lack of evidence that he informed his health care
providers of his pre-existing back condition.
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On review, the Commission affirmed the deputy commissioner and found that Strom failed
to prove he had suffered a compensable injury in the October 16, 2020 accident. Although it agreed
that the video evidence established Strom was involved in a motor vehicle accident while driving
the bus, it concluded he “suffered [no] bodily change as a result of the accident.” The Commission
concluded that Strom had not provided accurate information to his health care providers. It
emphasized that Strom was receiving treatment for chronic lower back pain before the accident and
had just been released from work restrictions, but his post-accident medical records did not cite his
history of back and neck injuries. To the contrary, Dr. Marco’s records indicated that Strom had no
significant medical history and that he denied prior neck problems. The Commission rejected
Strom’s testimony that he communicated his pre-existing back and neck problems to Dr. Sabet,
emphasizing that Dr. Sabet’s records did not cite them and that Strom had denied such a history to
Dr. Marco. Moreover, although Strom testified he experienced no symptoms for approximately a
week after the accident, his medical records did not reflect that he informed his physicians of the
delayed onset of symptoms. Based on its finding that Strom did not provide accurate information to
his health care providers, the Commission rejected their opinions that his injuries resulted from the
October 16, 2020 accident. Accordingly, it held that he failed to prove a compensable injury by
accident. Strom appeals.
ANALYSIS
Decisions of the Commission “shall be conclusive and binding as to all questions of
fact.” Code § 65.2-706(A). “Consequently, on appeal, ‘we do not retry the facts before the
Commission nor do we review the weight, preponderance of the evidence, or the credibility of
witnesses.’” Jeffreys v. Uninsured Employer’s Fund, 297 Va. 82, 87 (2019) (quoting Caskey v.
Dan River Mills, Inc., 225 Va. 405, 411 (1983)). Instead, “we are bound by the [C]ommission’s
findings of fact as long as ‘there was credible evidence presented such that a reasonable mind
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could conclude that the fact in issue was proved,’ even if there is evidence in the record that
would support a contrary finding.” Artis, 45 Va. App. at 83-84 (quoting Westmoreland Coal Co.
v. Campbell, 7 Va. App. 217, 222 (1988)). “The scope of a judicial review of the fact[-]finding
function of [the C]ommission . . . is ‘severely limited, partly in deference to the agency’s
expertise in a specialized field.’” Roske v. Culbertson Co., 62 Va. App. 512, 517 (2013)
(quoting Southside Va. Training Ctr. v. Ellis, 33 Va. App. 824, 828 (2000)). “However, the
[C]ommission’s legal determinations are not binding on appeal and will be reviewed de novo.”
Id. (quoting Wainwright v. Newport News Shipbuilding & Dry Dock Co., 50 Va. App. 421, 430
(2007)).
Strom maintains that the Commission erred by finding that he did not sustain a
compensable injury by accident on October 16, 2020. Although he acknowledges he had
pre-existing neck and back problems, Strom contends that “[t]here is supporting medical
evidence” demonstrating he sustained neck, back, and shoulder injuries in the October 16, 2020
accident. Citing his treatment from PA-C Wong, Dr. Sabet, and Dr. Marco, as well as
chiropractor Lauren Hale,1 Strom contends that he suffered “new injuries” as a result of the
accident. Strom stresses that Dr. Sabet noted on December 10, 2020, that he sustained an injury
to his neck and back as a result of the October accident, with his MRI revealing spondylolisthesis
of the lumbar spine, severe spinal stenosis, and degenerative disc disease with cervical spinal
cord impingement. He also emphasizes that Wong’s records indicated he had had left shoulder
pain and lower back pain “since” his October 16, 2020 motor vehicle accident. Strom maintains
that the evidence proved his motor vehicle accident “aggravated” his pre-existing back injury.
We disagree.
1
Hale excused Strom from work for two weeks in early December “[d]ue to injuries
sustained in a motor vehicle accident.”
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The Commission’s determination of causation is a finding of fact. Lee Cnty. Sch. Bd. v.
Miller, 38 Va. App. 253, 260 (2002). “[F]actual findings of the [C]ommission will not be
disturbed if based on credible evidence.” Hess v. Virginia State Police, 68 Va. App. 190, 194
(2017) (quoting Anthony v. Fairfax Cnty. Dep’t of Fam. Servs., 36 Va. App. 98, 103 (2001)).
“[U]nlike the Commission, the reviewing court is not charged with determining anew whether
the employer’s evidence of causation should be accorded sufficient weight to constitute a
preponderance of the evidence on that issue.” Bass v. City of Richmond Police Dep’t, 258 Va.
103, 114-15 (1999).
“Causation is usually proven by medical evidence.” Clinch Valley Med. Ctr. v. Hayes, 34
Va. App. 183, 192 (2000). “The opinion of the treating physician is entitled to great weight,
although the [C]ommission is not required to accept it[.]” Vital Link, Inc. v. Hope, 69 Va. App.
43, 64 (2018) (second alteration in original) (quoting United Airlines, Inc. v. Hayes, 58 Va. App.
220, 238 (2011)). “[S]uch an opinion is not conclusive, especially when the opinion is not
accompanied by any reasoning or explanation.” Thompson v. Brenco, Inc., 38 Va. App. 617, 623
(2002). “If there is any doubt in the treating physician’s opinion, or if there is contrary expert
medical opinion, ‘the [C]ommission is free to adopt that which is most consistent with reason
and justice.’” United Airlines, Inc. v. Sabol, 47 Va. App. 495, 501-02 (2006) (quoting Williams
v. Fuqua, 199 Va. 709, 714 (1958)). “Whenever a physician’s diagnosis flows from an
assumption that rests upon a faulty premise, such as misinformation provided by a claimant, the
[C]ommission may refuse, and often will be required to refuse, to attribute any weight to that
opinion.” Howell Metal Co. v. Adams, 35 Va. App. 184, 188 (2001) (quoting Sneed v. Morengo,
Inc., 19 Va. App. 199, 205 (1994)). Indeed, under such circumstances, “the Commission err[s]
in attributing any weight to it.” Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252 (1985).
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Here, the record supports the Commission’s decision that Strom failed to prove a
compensable injury by accident to his neck, shoulder, and back. The record establishes that
Strom had been suffering from chronic back pain for years and had neck and back problems
following a 2019 automobile accident. In addition, the record supports a rational inference that
Strom never communicated his pre-existing issues to his health care providers after October 16,
2020, and, in fact, denied the existence of prior injuries. None of the medical providers noted
Strom’s prior injuries in his records, and some of them noted that he denied prior neck issues or
any significant medical history. Moreover, the record supports the Commission’s finding that
Strom misrepresented to his health care providers that he immediately experienced symptoms after
the accident. Although Strom testified that his symptoms developed approximately a week after the
accident, Wong’s notes reflect that he had had symptoms since October 16, 2020. Based on the
conflicts between the pre-accident and post-accident medical records, and between Strom’s
testimony and the medical records, the Commission was entitled to find that the medical opinions
linking the accident to Strom’s injuries were not credible because they were based on faulty
information. Further, as the Commission emphasized, no medical care provider offered an
explanation regarding Strom’s delayed onset of symptoms, an additional factor entitling the
Commission to discount their opinions.
Finally, nothing in the record indicates that the medical care providers viewed the footage of
the October 16, 2020 accident before rendering their opinions, an additional basis for discounting
their opinions. The minimal impact depicted in that footage supported the Commission’s finding
that Strom was not injured during the accident. An “appellate court does not ‘retry the facts,’
reweigh the evidence, or make its own determination of the ‘credibility of the witnesses.’” Yahner
v. Fire-X Corp., 70 Va. App. 265, 273 (2019) (quoting Jeffreys, 297 Va. at 87). That deference
applies to determinations from recordings, sometimes referred to as a “silent witness.” Donati v.
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Commonwealth, 37 Va. App. 575, 581 (2002) (quoting Brooks v. Commonwealth, 15 Va. App. 407,
410 (1992)). “[A] trial court views video and other evidence to determine what it believes
happened; we, on appellate review, view video evidence not to determine what we think happened,
but for the limited purpose of determining whether any rational factfinder could have viewed it as
the trial court did.” Meade v. Commonwealth, 74 Va. App. 796, 806 (2022).
The Commission acted within its role as factfinder when it weighed Strom’s testimony,
the video evidence, and the opinions of his medical care providers against his pre-existing
medical history and determined that his neck, back, and shoulder injuries were not caused by the
October 16, 2020 accident. Accordingly, as competent and credible evidence supports the
Commission’s unanimous conclusion that Strom did not prove compensable injuries by accident,
we affirm its decision.
CONCLUSION
For the foregoing reasons, the Commission’s judgment is affirmed.2
Affirmed.
2
We also deny employer’s motion to dismiss filed on June 23, 2022.
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