Universal Living v. Kurt F Stalcup ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
UNIVERSAL LIVING AND
COMMONWEALTH CONTRACTORS GROUP
SELF-INSURED ASSOCIATION
MEMORANDUM OPINION*
v. Record No. 0981-02-1 PER CURIAM
SEPTEMBER 24,2002
KURT F. STALCUP
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Todd G. Patrick; Mark S. Davis; Carr &
Porter, LLC, on briefs), for appellants.
(Mary G. Commander, on brief), for appellee.
Universal Living and its insurer (hereinafter referred to
as "employer") contend the Workers' Compensation Commission
erred in denying its application alleging a change in condition
on the ground that employer failed to prove that Kurt F.
Stalcup's (claimant) current disability was not causally related
to his compensable May 22, 2000 injury by accident. 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.
"General principles of workman's compensation law provide
that 'in an application for review of any award on the ground of
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). Unless we can say as a matter of law that
employer's evidence sustained its burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
In May 2000, claimant, a carpenter, sustained a compensable
back injury while installing a Jacuzzi in a house. Prior to
that accident, claimant had back surgery in 1998. After the
1998 surgery, claimant returned to full-duty work as a carpenter
and participated in bowling, baseball, and softball activities.
Dr. Colin Hamilton, an orthopedist, began treating claimant
on June 16, 2000, upon a referral from Dr. Randall Fedro, who
examined claimant immediately after the accident. Dr. Hamilton
suspected claimant had degenerative disc disease with a probable
acute annular disc tear. A June 7, 2000 MRI, reviewed by
Dr. Hamilton, showed that "definite recurrent HNP cannot be
verified." Claimant's condition continued to worsen, and
Dr. Hamilton recommended physical therapy.
Claimant underwent an epidural steroid injection, but
continued to have pain through September and October 2000.
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After a second injection, he began having right-sided symptoms.
After a third injection, claimant's leg pain resolved, but he
continued to suffer from back pain. Dr. Hamilton opined that
"it would be difficult to state that [claimant's] continuing low
back symptoms are specifically related to his putting the
Jacuzzi into the frame on 5-19-00 and more likely to be
secondary to the chronic degenerative disc disease of his lumbar
spine."
In Dr. Hamilton's May 4, 2001 deposition, based upon the
lack of appreciable findings on the June 2000 MRI, Dr. Hamilton
reiterated that claimant's continuing back problems were not
related to the May 2000 accident, but rather were related to his
degenerative disc disease.
On June 1, 2001, Dr. Grant Skidmore, a neurosurgeon,
examined claimant upon referral from Dr. Fedro. Dr. Skidmore
was aware of the history of claimant's May 2000 accident, his
subsequent treatment, as well as his 1998 back surgery.
Dr. Skidmore ordered a repeat MRI, which showed an area at the
L3-4 level that "appears to represent a small disc protrusion or
disc fragment" that was not "seen with certainty on the previous
study."
On September 13, 2001, Dr. Skidmore opined that the May
2000 compensable accident exacerbated claimant's back condition,
causing claimant's current symptoms. Dr. Skidmore noted that
claimant was doing well and not receiving any treatment before
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the May 2000 accident, but had suffered from back symptoms since
then.
Based upon this record, the commission found that employer
failed to prove that claimant's continuing problems were not the
result of the May 2000 compensable accident. As fact finder,
the commission weighed the medical evidence, accepted
Dr. Skidmore's opinion, and rejected the contrary opinion of
Dr. Hamilton. "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).
Dr. Skidmore's opinion was based on a more definitive MRI study
not available to Dr. Hamilton. Moreover, as the commission
noted, claimant had "continuous problems since the May 2000
accident compared with his stable condition before the
accident." Accordingly, based upon this record, we cannot find
as a matter of law that employer's evidence sustained its burden
of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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