Quality Inn Executive v. Zoila L. Umana ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia
QUALITY INN EXECUTIVE AND
HIGHLANDS INSURANCE GROUP,
F/K/A VIK BROTHERS INSURANCE
GROUP/LMI INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1593-98-4 JUDGE NELSON T. OVERTON
JUNE 15, 1999
ZOILA L. UMANA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Tenley A. Carroll-Seli (Pierce & Howard,
P.C., on brief), for appellants.
William S. Sands, Jr. (Duncan & Hopkins,
P.C., on brief), for appellee.
Quality Inn Executive and its insurer (hereinafter referred
to as "employer") appeal a decision of the Workers' Compensation
Commission ("commission") finding it responsible for the cost of
cervical disc surgery recommended by Dr. Donald Hope for Zoila L.
Umana ("claimant"). Employer contends that the commission erred
in finding that claimant proved that (1) her cervical disc
condition was causally related to her compensable January 16, 1995
injury by accident, and (2) the proposed cervical disc surgery
constitutes necessary treatment of her compensable right shoulder
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
injury. For the reasons that follow, we affirm the commission's
decision.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"'However, the question of whether the disputed medical treatment
was necessary within the meaning of Code § 65.2-603 is a mixed
question of law and fact.' Accordingly, the commission's
conclusions as to the necessity of the disputed medical treatment
are not binding upon this Court." Papco Oil Co. v. Farr, 26 Va.
App. 66, 73-74, 492 S.E.2d 858, 861 (1997) (quoting Lynchburg
Foundry Co. v. Goad, 15 Va. App. 710, 712-13, 427 S.E.2d 215, 217
(1993)).
On January 16, 1995, claimant suffered a work-related
accident wherein she sustained a compensable right shoulder
injury. The parties executed a Memorandum of Agreement ("MOA")
specifying that claimant injured her right shoulder as a result
of the accident. The commission subsequently entered an award
of benefits based on the MOA.
Claimant began treatment with Dr. P.M. Palumbo, Jr. on
January 23, 1995. At that time, Dr. Palumbo noted complaints of
right shoulder, arm, and hand pain. Between February 1995 and
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the beginning of April 1995, claimant continued under Dr.
Palumbo's care, receiving physical therapy and injections, but
her right shoulder and arm pain continued. On April 4, 1995,
Dr. Palumbo recommended that claimant undergo arthroscopic
debridement with subacromial decompression if she failed to
improve. On May 16, 1995, Dr. Palumbo noted that claimant
continued to have pain in her right shoulder and arm and that
her hand was numb. He also noted that she had pain in the right
side of her neck.
After May 16, 1995 up through July 5, 1995, claimant
continued to intermittently complain to Dr. Palumbo of hand,
neck and shoulder pain. On July 5, 1995, Dr. Palumbo operated
on claimant's right shoulder. Claimant reported some relief
after the surgery, but she continued to treat with Dr. Palumbo
for right shoulder, back and arm pain.
After a July 2, 1996 office visit wherein claimant
complained of constant pain in her shoulder with radiation down
her upper arm and occasional hand numbness, Dr. Palumbo ordered
that she undergo an MRI of her cervical spine. That MRI
revealed significant degenerative disc disease in claimant's
cervical spine at multiple levels, along with a left-sided disc
herniation at the C6-C7 level. On July 31, 1996, Dr. Palumbo
noted claimant's continuing complaints of right shoulder and
neck pain. Dr. Palumbo noted that claimant "may well, indeed,
be suffering from symptoms of a C6-7 nerve root irritation as
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well as a rotator cuff tendinitis." As a result of these
findings, Dr. Palumbo referred claimant to Dr. Hope, a
neurosurgeon.
On August 29, 1996, Dr. Hope examined claimant and agreed
that she suffered from cervical disc disease. In his August 29,
1996 office notes, Dr. Hope noted that claimant's main complaint
was neck pain. He also noted that claimant had undergone
surgery for her shoulder from Dr. Palumbo, but that this pain
sounded "more radicular than it does localized to the shoulder."
Dr. Hope recommended that claimant undergo discectomy and fusion
at C6-C7. On October 10, 1996, Dr. Hope opined that the surgery
for claimant's cervical disc condition "stems from her
work-related injury of approximately one year ago."
In a March 13, 1997 letter report, Dr. Palumbo wrote that
claimant as of her last visit had "marked tightness in the right
upper trapezius with a trigger area at the superior angle of the
scapula." He also wrote that he told claimant "that the
upcoming [disc] surgery should improve her right upper trapezius
pain that it was unclear that the surgery would improve her
rotator cuff tenderness."
In his March 17, 1997 deposition, Dr. Palumbo testified
that claimant's cervical disc condition occurred at the time of
her compensable accident, but that it was a separate and
distinct injury from her right shoulder injury. Dr. Palumbo
testified that claimant's right rotator cuff problem and severe
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shoulder complaints masked her cervical disc condition until at
least October 1995. He stated that it is very difficult to
differentiate "pain in the shoulder from the shoulder itself or
pain in the shoulder from a cervical problem."
In an April 8, 1997 letter to claimant's counsel, Dr.
Palumbo opined that "[t]his patient's clinical picture is
further complicated by her shoulder injury, which is not
directly related to her cervical disc condition, but is a
separate condition sustained in the same accident."
Based on this evidence, the commission found that
claimant's cervical disc condition constituted a separate and
distinct injury from the right shoulder injury, which was the
only specific injury covered by the MOA and the commission's
December 1995 award. Because claimant did not file a timely
claim pursuant to Code § 65.2-601 with respect to the cervical
disc injury, the commission ruled that a claim for the cervical
injury, in and of itself, was barred by the applicable statute
of limitations under the Supreme Court's ruling in Shawley v.
Shea-Ball Construction Co., 216 Va. 442, 219 S.E.2d 849 (1975).
The commission then ruled that, based on the opinions of
Drs. Palumbo and Hope, claimant's cervical disc condition was
causally related to the compensable accident. The commission
further found that "treatment for the claimant's cervical
condition is necessary treatment related to the compensable
accident to the extent that it is necessary to treat symptoms
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related to the shoulder injury." Thus, the commission held that
because the proposed cervical disc surgery was necessary to
treat the compensable right shoulder injury, the claim for that
surgery was not time-barred and employer was responsible for its
cost.
On appeal, claimant does not dispute that the holding in
Shawley applied to the cervical disc condition to render it a
separate and distinct injury for which she failed to file a
timely claim pursuant to Code § 65.2-601. Therefore, that
finding is binding upon us on appeal. In addition, we are bound
by the commission's holding that claimant's cervical disc injury
resulted from the January 16, 1995 accident because that finding
is supported by credible evidence, including the opinions of
Drs. Palumbo and Hope.
The issue that remains is whether there is credible
evidence to support the commission's finding that employer is
liable for the cost of the proposed cervical disc surgery
because that surgery is necessary in order to treat the symptoms
of claimant's compensable right shoulder injury.
The commission's finding that the cervical disc surgery
recommended by Dr. Hope was necessary in order to successfully
treat the symptoms causally related to claimant's compensable
right shoulder injury is supported by credible medical evidence,
including the medical records of Drs. Hope and Palumbo and Dr.
Palumbo's deposition testimony. Dr. Hope opined that the disc
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surgery "stems" from the work injury. Based upon that opinion,
the commission could reasonably infer that the disc surgery was
necessary to treat the shoulder injury. In addition, based upon
Dr. Palumbo's testimony that it is difficult for him to separate
claimant's shoulder complaints from her disc symptoms and his
March 13, 1997 letter in which he concluded that the disc
surgery should improve claimant's right upper trapezius pain and
might improve her rotator cuff tenderness, the commission could
reasonably conclude that the disc surgery was necessary to treat
the shoulder injury, as well as the disc condition. "Where
reasonable inferences may be drawn from the evidence in support
of the commission's factual findings, they will not be disturbed
by this Court on appeal." Hawks v. Henrico Co. Sch. Bd., 7 Va.
App. 398, 404, 374 S.E.2d 695, 698 (1988).
Accordingly, we affirm the commission's findings that
claimant's cervical disc condition occurred as a result of the
compensable injury by accident and that claimant failed to file
a timely claim with respect to the disc injury. In addition, we
affirm the commission's finding that employer is responsible for
the cost of the cervical disc surgery proposed by Dr. Hope
because it constitutes necessary treatment of claimant's
compensable right shoulder injury.
Affirmed.
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