Super Fresh Food Markets, Inc. v. Rejino C. Stultz ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
SUPER FRESH FOOD MARKETS, INC.
MEMORANDUM OPINION *
v. Record No. 1276-98-4 PER CURIAM
OCTOBER 6, 1998
REJINO C. STULTZ
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy, III; Sands, Anderson,
Marks & Miller, on brief), for appellant.
(James E. Swiger; Swiger & Cay, on brief),
for appellee.
Super Fresh Food Markets, Inc. ("employer") contends that
the Workers' Compensation Commission ("commission") erred in
finding that the Supreme Court's holding in The Steinrich Group
v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), did not bar
compensation for Rejino C. Stultz's ("claimant") left shoulder
condition. The commission found that the left shoulder condition
was a compensable consequence of claimant's original February 14,
1994 injury by accident. Employer also argues that the
commission should have dismissed claimant's claim, because he
failed to file his claim for benefits as a new injury claim,
rather than as a change in condition. Upon reviewing the record
and the briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
In Virginia, "[t]he doctrine of compensable consequences is
well established and has been in existence for many years."
Williams Indus., Inc. v. Wagoner, 24 Va. App. 181, 186, 480
S.E.2d 788, 790 (1997).
This doctrine, also known as the chain of
causation rule, provides that "'where the
chain of causation from the original
industrial injury to the condition for which
compensation is sought is direct, and not
interrupted by any intervening cause
attributable to the [employee's] own
intentional conduct, then the subsequent
[condition] should be compensable.'"
Food Distributors v. Estate of Ball, 24 Va. App. 692, 697, 485
S.E.2d 155, 158 (1997) (quoting Leadbetter, Inc. v. Penkalski, 21
Va. App. 427, 432, 464 S.E.2d 554, 556 (1995)) (other citation
omitted). "'The simplest application of this principle is the
rule that all the medical consequences and sequelae that flow
from the primary injury are compensable.'" American Filtrona Co.
v. Hanford, 16 Va. App. 159, 163, 428 S.E.2d 511, 513 (1993)
(citation omitted). "[W]here a causal connection between the
initial compensable injury and the subsequent injury is
established . . . the subsequent injury 'is treated as if it
occurred in the course of and arising out of the employee's
employment.'" Bartholow Drywall Co. v. Hill, 12 Va. App. 790,
794, 407 S.E.2d 1, 3 (1991) (quoting Leonard v. Arnold, 218 Va.
210, 214, 237 S.E.2d 97, 100 (1977)).
Employer does not dispute that claimant proved a causal
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connection between his initial February 14, 1994 compensable
right shoulder injury and his subsequent left shoulder problems. 1
However, employer contends that the commission erred in refusing
to apply the rule set forth in Jemmott to bar compensation in
this case. Employer argues that Jemmott bars compensation for a
cumulative trauma injury which is found to be a compensable
consequence of an original injury by accident. We disagree.
In Jemmott, the Supreme Court held that "job-related
impairments resulting from cumulative trauma caused by repetitive
motion, however labeled or however defined, are, as a matter of
law, not compensable under the present provisions of the Act."
251 Va. at 199, 467 S.E.2d at 802. Jemmott dealt with the
compensability of a primary injury or condition, it did not
address the compensability of a cumulative trauma injury caused
by an intervening event, which was itself a result of the
original compensable injury by accident. Nothing in Jemmott
expressly overruled or altered the well-established doctrine of
compensable consequences. Accordingly, the commission did not
err in refusing to apply the holding in Jemmott to the facts of
this case.
II.
Employer argues that the commission should have dismissed
claimant's claim because he failed to file a claim for benefits
1
Claimant's testimony and the medical evidence established
that his left shoulder symptoms were caused by overuse of his
left extremity due to the injury to his right shoulder.
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alleging a new injury by accident as required by Leonard v.
Arnold, 218 Va. 210, 237 S.E.2d 97 (1977). Employer did not
raise this specific argument before the commission. Accordingly,
we will not consider this issue for the first time on appeal.
See Green v. Warwick Plumbing & Heating Corp., 5 Va. App. 409,
413, 364 S.E.2d 4, 6 (1988); Rule 5A:18.
For these reasons, we affirm the commission's decision.
Affirmed.
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