Blockbuster, etc v. Sheree A. Ludwig-Tiller ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BLOCKBUSTER VIDEO/WJP VIDEO
AND
ROYAL INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2272-95-1 PER CURIAM
FEBRUARY 6, 1996
SHEREE A. LUDWIG-TILLER
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(James C. McCaa, III; Taylor & Walker, on
brief), for appellants.
(William W. Nexsen; Timothy P. Murphy;
Stackhouse, Smith & Nexsen, on brief), for
appellee.
Blockbuster Video/WJP Video and its insurer (hereinafter
collectively referred to as "employer") appeal from a decision of
the Workers' Compensation Commission awarding compensation to
Sheree A. Ludwig-Tiller. Employer contends that the commission
erred in finding that Ludwig-Tiller's November 19, 1993
compensable injury by accident caused an exacerbation of her
pre-existing bipolar condition. Finding no error, we affirm the
commission's decision.
On appeal, we view the evidence in the light most favorable
to the prevailing party. R.G. Moore Bldg. Corp. v. Mullins, 10
Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "The actual
determination of causation is a factual finding that will not be
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
disturbed on appeal if there is credible evidence to support the
finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376
S.E.2d 814, 817 (1989). "Questions raised by conflicting medical
opinions must be decided by the commission." Penley v. Island
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
An employee who is injured in a work-related accident, and
whose injuries aggravate or exacerbate a pre-existing condition
resulting in disability, is entitled to compensation for the
disability. Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58,
334 S.E.2d 554, 555 (1985). Ludwig-Tiller received a broken leg,
multiple contusions, and a head injury in a compensable
automobile accident, which injuries subsequently caused a
chemical imbalance and depression and aggravated her pre-existing
bipolar disorder, causing her to be disabled from working.
In an April 5, 1994 report, Dr. Richard B. Ellis, Ludwig-
Tiller's treating neuro-psychiatrist since 1992, opined as
follows:
It is probable that the motor vehicle
accident with its associated physical
disability and emotional distress at a highly
and demanding time of year contributed
substantially to the patient's exacerbation
of illness. As with other medical illnesses,
such as diabetes or asthma, significant
stressors can cause a recurrence of symptoms
in bipolar disorder. Prior to the accident
she had stabilized to the point of requiring
followup appointments only every three months
for medication refills. With the added
physical and emotional distress, she showed a
definite decline in her mood and level of
functioning.
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As fact finder, the commission accepted Dr. Ellis' opinion
and rejected the contrary opinion of Dr. Paul Mansheim, who
performed a review of Ludwig-Tiller's medical records at
employer's request. Moreover, the commission noted that Dr.
Mansheim based his opinion on an inaccurate recitation of Ludwig-
Tiller's history. In cases of conflicting medical evidence,
"[t]he general rule is that when an attending physician is
positive in his diagnosis . . . , great weight will be given by
the courts to his opinion." Pilot Freight Carriers, Inc. v.
Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). Dr.
Ellis' opinion constitutes credible evidence to support the
commission's decision. "The existence of contrary evidence in
the record is of no consequence if there is credible evidence to
support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
In addition, employer executed a memorandum of agreement
four months after the industrial accident, acknowledging its
liability for medical expenses and disability related to Ludwig-
Tiller's compensable "head injury, chemical imbalance, [and]
depression." The commission entered an award for Ludwig-Tiller's
disability as a result of these injuries. The medical records,
the memorandum of agreement, and award support the commission's
finding that the parties "were fully informed as to [Ludwig-
Tiller's] ongoing physical and mental complaints and agreed that
her chemical imbalance and depression were caused by the
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industrial accident." The evidence and the award support the
commission's decision.
As to the employer's argument that Ludwig-Tiller's bipolar
disorder did not qualify as an "injury by accident," but rather
constituted an ordinary disease of life, which, if exacerbated,
was not compensable under the Act, the employer did not raise
these issues before the commission. Accordingly, we will not
consider these arguments for the first time on appeal. Green v.
Warwick Plumbing & Heating Corp., 5 Va. App. 409, 413, 364 S.E.2d
4, 6 (1988); Rule 5A:18.
For the reasons stated, we affirm the commission's decision
holding employer responsible for the cost of medical treatment
related to Ludwig-Tiller's bipolar condition and any subsequent
disability.
Affirmed.
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