Philip Morris USA v. Robert E Kenney ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
PHILIP MORRIS USA AND
LUMBERMENS MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 1983-02-2 PER CURIAM
DECEMBER 3, 2002
ROBERT E. KENNEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Thomas J. Mitchell; Hunton & Williams, on
brief), for appellants.
(Zenobia J. Peoples, on brief), for appellee.
Philip Morris USA and its insurer contend the Workers'
Compensation Commission (commission) erred in finding that
Robert E. Kenney's (claimant) right shoulder rotator cuff tear
was a compensable consequence of his compensable April 11, 2000
left shoulder injury. Upon reviewing the record and the
parties' briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
[The] doctrine [of compensable
consequences], 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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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) (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)
(emphasis added).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 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).
On April 11, 2000, claimant sustained a left rotator cuff
tear as a result of a compensable injury by accident while
working for employer.
On August 21, 2001, at a time when claimant was still
undergoing physical therapy for his left shoulder injury, he
reported to his treating physician, Dr. Stephen J. Leibovic,
that he was developing pain in his right shoulder. Dr. Leibovic
ordered an MRI of claimant's right shoulder. Based upon the MRI
results, Dr. Leibovic concluded that claimant had sustained a
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torn rotator cuff of his right shoulder. In his October 11,
2001 report, Dr. Leibovic opined as follows:
With respect to cause, [claimant] first told
me about pain in the right shoulder in
September of this year. That was quite some
time after this initial injury at work. He
says that he thinks he was overusing his
right shoulder as a result of his left
shoulder problems, and this is certainly
reasonable, but whether or not it was
entirely responsible for his tear in the
right rotator cuff is difficult to say. It
probably contributed, but probably was not
the only cause.
Claimant testified that he had not suffered any accidents
or injuries involving his right shoulder after April 11, 2000
and that there were no unusual incidents relating to that
shoulder. He stated that he had never experienced any problems
with his right shoulder prior to the April 11, 2000 compensable
injury by accident. Claimant testified that he first noticed
symptoms in his right shoulder in August 2001. No evidence
contradicted claimant's testimony.
"[A] doctor's statement that a certain
condition is probably connected to the
injury means there is a reasonable
likelihood of causation, which 'is
sufficient to permit a trier of fact to
accord the statement probative weight.'"
"The testimony of a claimant may also be
considered in determining causation . . . ."
Henrico County School Bd. v. Etter, 36 Va. App. 437, 444, 552
S.E.2d 372, 375 (2001) (citations omitted).
Dr. Leibovic opined that claimant's overuse of his right
arm, which the commission could reasonably infer was caused by
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claimant's compensable left shoulder injury, probably
contributed to cause the right rotator cuff tear, although it
was not the only cause. "The principle is well established that
'where a disability has two causes: one related to the
employment and one unrelated [to the employment] . . . full
benefits will be allowed.'" Ford Motor Co. v. Hunt, 26 Va. App.
231, 237-38, 494 S.E.2d 152, 155 (1997) (citation omitted).
Thus, Dr. Leibovic's medical records and opinions, coupled with
claimant's testimony, constitute credible evidence to support
the commission's finding that claimant proved that his right
shoulder condition was a compensable consequence of his
compensable April 11, 2000 left shoulder injury.
For these reasons, we affirm the commission's decision.
Affirmed.
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