Keen Drilling, etc v. Jerry Asa Smith ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Salem, Virginia
KEEN DRILLING COMPANY, INC.
and
HARTFORD UNDERWRITERS INSURANCE COMPANY
v. Record No. 1225-94-3 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
JERRY ASA SMITH JUNE 20, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Sarah Y.M. Kirby (Cecil H. Creasey, Jr.;
Jennifer G. Marwitz; Sands, Anderson, Marks & Miller,
on brief), for appellants.
Gregory R. Herrell (D. Edward Wise, Jr.; Arrington,
Schelin & Herrell, P.C., on brief), for appellee.
Keen Drilling Company appeals a denial by the Workers'
Compensation Commission of its application for change of
condition. The issues on appeal are whether the commission erred
when it determined that the employer's application did not raise
the issue of causation and whether the commission erred by
determining that the employer failed to prove that the employee
could return to his pre-injury job status. For the following
reasons, we affirm the decision of the commission.
The complainant, Jerry Smith, sustained a compensable back
injury in 1992 while working as a drill helper for Keen Drilling
Company, Inc. Smith received treatment from Dr. Timothy McGarry.
Drs. Abeleda and Hill also treated Smith for related anxiety and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
depression. In 1993, Dr. McGarry prepared a letter report in
which he opined that there was no physical reason Smith could not
return to his pre-injury job status. Psychological testing and
interviews showed that Smith still was suffering from anxiety and
depression.
Keen filed an application for a change of condition based
upon the report of Dr. McGarry. The application merely stated
that "Dr. McGarry, the [primary treating physician] has indicated
that employee is capable of returning to work regular duty."
Attached to the application was a letter from Dr. McGarry, which
stated:
Dear Ms. Meade:
I received your inquiry regarding the above
captioned patient. Please find enclosed the pre-injury
job description for consideration of releasing Mr.
Smith to his pre-injury work.
Based upon my evaluation of Mr. Smith and also in
light of the evaluations by both Drs. Wood and Bachman,
I find no definite physical reason why Mr. Smith should
not be able to return to his pre-injury work status.
However, I must qualify this statement somewhat in
light of the markedly abnormal MMPI which Mr. Smith
completed and which was read by Dr. Hill. As you note,
it appeared that Mr. Smith's psychological profile was
not related to his injury, but there is no question in
my mind that his psychological profile significantly
affects his current physical status. I think that Mr.
Smith would definitely benefit from further psychiatric
evaluation and feel in the longrun that this may be the
answer to his significant problems.
The deputy commissioner found that the application did not
raise a causation issue and determined that Smith could not
return to his pre-injury job status. The commission affirmed the
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deputy commissioner's decision.
Rule 13 (now Rule 14) mandates that an application for a
change of condition shall state the grounds for relief. One
purpose of this portion of the rule is to provide due process
notice to the claimant so that he or she can prepare to be heard
on the issues raised in the application. To raise the issue of
causation, an employer must do more than allege that the claimant
is able to return to work, Celanese Fibers Co. v. Johnson, 229
Va. 117, 326 S.E.2d 687 (1985), or by application state that the
claimant is able to return to work and include a standard
physician's form from the attending physician which states that
the employee can return to work. Central Virginia Training
Center v. Martin, 2 Va. App. 188, 189-90, 342 S.E.2d 652, 653
(1986). An employer must allege that the "effects of the injury
have fully dissipated and the disability is the result of another
cause." Johnson, 229 Va. at 120, 326 S.E.2d at 690.
While such allegations do not have to appear on the face of
the application, Suite v. Clinchfield Coal Co., 8 Va. App. 554,
383 S.E.2d 21 (1989), aff'd en banc, 9 Va. App. 492, 389 S.E.2d
187 (1990), the employer must at least reference the documents
from which the employee could gain notice of the issue and attach
the documents to the application. See Suite, 8 Va. App. at 556,
383 S.E.2d at 22-23; see also Stump Trucking v. Stump, 12 Va.
App. 555, 404 S.E.2d 747 (1991). Referencing and attaching the
documents must be done in such a way as to provide reasonable
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notice to the employee that the issue of causation will be
raised.
In this case, the employer filed a change of condition
application which merely stated "Dr. McGarry, the PAP [primary
authorized physician] has indicated that the employee is capable
of returning to work regular duty." The application does not
specify what, if any, report is relied upon, nor give the
employee any reason to reference any additional material to
understand the nature of the employer's claim. Much like the
situation in Stump, the reference in the application to an
opinion of Dr. McGarry "failed to clearly identify the report so
as to give [Smith] adequate notice." Id. at 558, 404 S.E.2d at
749. The application does not indicate that the commission or
the employee needs to incorporate any additional forms to
determine which issues are raised. From the face of the
application, the employee has no way of knowing that a causation
issue would be before the commission. See Johnson, 229 Va. at
120, 326 S.E.2d at 689-90.
Also, unlike the situation in Suite, the report upon which
Dr. McGarry's opinion was based was not referenced, nor was it
distinguished from other medical reports before the commission.
Because the application was not specific, Smith had no way of
determining what, if any, issue, other than disability, was
before the commission. In light of due process, we note that the
letter that was attached to the application was couched in rather
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equivocal language. Cf. Suite, 8 Va. App. at 556, 383 S.E.2d at
22. Even if the letter had been referenced in the application,
Smith could not have known that the employer was alleging that
the "effects of the injury" had "fully dissipated" and that the
"disability was the result of another cause." Since the face of
the application did not provide notice, see Johnson, 229 Va. at
120, 326 S.E.2d at 689-90, and Stump, 12 Va. App. 555, 404 S.E.2d
747, and the letter was unreferenced in the application and
contained equivocal references to Smith's injury, we affirm the
commission's decision.
Keen also contends that the commission's finding that Smith
was not able to return to work was incorrect. We disagree.
On appeal we examine the evidence in the light most
favorable to the prevailing party below. Christiansen v. Metro
Building Supply, 18 Va. App. 721, 723, 447 S.E.2d 519, 520
(1994). If credible evidence exists in the record, we will not
disturb the commission's findings on appeal. Rose v. Red's Hitch
& Trailer Service, Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395
(1990). "The fact that contrary evidence may be found in the
record is of no consequence if credible evidence supports the
commission's finding[s]." Manassas Ice & Fuel Co. v. Farrar, 13
Va. App. 227, 229, 409 S.E.2d 824, 826 (1991).
The deputy commissioner found that the evidence showed that
Smith was still undergoing treatment for depression related to
his compensable injury and was, therefore, unable to return to
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his pre-injury status. Although Dr. McGarry's letter explaining
Smith's condition does state that Smith is physically able to
return to work, it does not eliminate the possibility that Smith
is mentally unable to return to work. Dr. Abeleda opined that
Smith's poor psychological state was related to his compensable
injury. Assuming for argument that McGarry's letter clearly
stated that Smith was fully able to return to his pre-injury
status, Dr. Hill's and Dr. Abeleda's reports would conflict with
Dr. McGarry's diagnosis. When there is a conflict in the
evidence, we are bound by the commission's finding if supported
by credible evidence. Imperial Trash Service v. Dotson, 18 Va.
App. 600, 603, 445 S.E.2d 716, 718 (1994). Given the credible
evidence of the two examining physicians, Drs. Hill and Abeleda,
and the equivocal nature of Dr. McGarry's letter, we find
sufficient credible evidence in the record to support the
decision of the commission.
Affirmed.
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