Suggs Carpet Installation v. Joseph W. Suggs ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
SUGGS CARPET INSTALLATION AND
HARTFORD CASUALTY INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 3472-01-2 PER CURIAM
MAY 7, 2002
JOSEPH WAYNE SUGGS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy III; P. Dawn Bishop; Sands
Anderson Marks & Miller, on brief), for
appellants.
(Gerald G. Lutkenhaus; The Law Office of
Gerald G. Lutkenhaus, on brief), for
appellee.
Suggs Carpet Installation and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that Joseph Wayne Suggs (claimant)
proved (1) he sustained a change-in-condition causally related
to his compensable January 5, 1995 injury by accident; (2)
medical treatment rendered to him after October 1, 1996 was
causally related to his compensable injury by accident; and (3)
Dr. Michael Decker's narcotics therapy constituted reasonable
and necessary medical treatment. Upon reviewing the record and
the parties' briefs, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
I. Change-in-Condition
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).
"General principles of workman's compensation law provide that
'in an application for review of any award on the ground of
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)).
Code § 65.2-101 defines a change-in-condition as "a change
in physical condition of the employee as well as any change in
the conditions under which compensation was awarded, suspended,
or terminated which would affect the right to, amount of, or
duration of compensation." In AMP, Inc. v. Ruebush, 10 Va. App.
270, 391 S.E.2d 879 (1990), we recognized that "[t]he Supreme
Court held in Mace [v. Merchants Delivery Moving Storage, 221
Va. 401, 270 S.E.2d 717 (1980),] that 'a change in an attending
physician's opinion concerning an employee's ability to resume
work meets the criteria detailed in Code § 65.1-8 [now Code
65.2-101].' It is clear that a 'change in "condition" includes
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the "capacity to work."'" AMP, Inc., 10 Va. App. at 273, 391
S.E.2d at 880-81 (citations omitted).
In granting claimant's application, the commission found as
follows:
The primary issue is whether the
claimant has shown that his condition has
deteriorated since 1997. We find that it
has. Dr. [Steven M.] Fiore, an orthopedist
who first saw the claimant in July 1997,
testified that the claimant has been totally
disabled since that time. Dr. Decker, a
pain management specialist who began
treating the claimant in April 1998, stated
that the claimant has been totally disabled.
Dr. Decker made the point that he was able
to observe the claimant nine hours a day in
his pain clinic, and it was clear to him
that the claimant could not work. In
addition to extensive personal observation
of the claimant, both Drs. Fiore and Decker
point to objective evidence of discogenic
pain based on the discogram. Another
objective indicator of the claimant's
worsening condition is the fact that
Dr. Decker directed him to use crutches,
whereas previously he had used a cane.
Dr. [Sidney H.] Schnoll supports the
opinions of Drs. Fiore and Decker, arguing
that an orthopedic surgeon such as
Dr. [Robert S.] Adelaar is not qualified to
direct or assess treatment of chronic pain
syndrome. Dr. Schnoll explained the
claimant's "drug-seeking" behavior as a
result of his undermedication by his
original treating physicians.
We find the opinions of these
physicians more persuasive than those of
Drs. Adelaar, [Walter S.] Davis, [Howard G.]
Stern and [Douglas A.] Wayne for several
reasons. First, Drs. Fiore and Decker are
more familiar with the patient than are the
other doctors. Second, we note that the
claimant was able to successfully run his
own business and engage in heavy physical
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labor, and to maintain a stable family life,
until the age of 39, when the motor vehicle
accident occurred. The claimant was not
addicted to narcotics prior to the accident.
As Dr. Schnoll pointed out, even if the
claimant were considered a narcotics addict
rather than a "pseudoaddict" as Dr. Schnoll
believes, this condition impairs his ability
to work and is related to the accident.
Dr. Adelaar concedes that the claimant is in
pain, and his condition is complicated by
his narcotic regime.
We do not agree with the deputy
commissioner's reasoning that the fact that
the claimant believes that he has always
been totally disabled since the accident
refutes his argument for a change in
condition, which is supported by the medical
evidence.
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). The medical records and opinions of Drs. Fiore, Decker,
and Schnoll provide ample credible evidence to support the
commission's finding that claimant proved he sustained a
change-in-condition causally related to his compensable injury
by accident, entitling him to an award of temporary total
disability benefits beginning March 22, 1997. Their medical
records and opinions established that claimant's disability
status changed and his condition worsened since 1997. 1 As fact
1
We note that claimant's and his wife's opinions that he
had been totally disabled since the accident, did not bar his
claim under Massie v. Firmstone, 134 Va. 450, 114 S.E. 652
(1922). "The Massie doctrine applies only to a party litigant's
statements of fact that are within the litigant's own knowledge,
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finder, the commission was entitled to accept the opinions of
these physicians and to reject the contrary opinions of
Drs. Adelaar, Davis, Stern, and Wayne. "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). Moreover, "[i]n determining whether credible
evidence exists, the appellate court does not retry the facts,
reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). Because credible evidence supports the commission's
findings, we will not disturb them on appeal.
II. Medical Treatment
On appeal, employer argues that the commission erred in
holding it responsible for claimant's post-October 1, 1996
medical treatment on the ground that Dr. Kennedy S. Daniels
opined on October 1, 1996 that claimant's disability and medical
treatment resulted from his degenerative disc disease and not
from any identifiable trauma. Employer contends Dr. Daniels'
opinion collaterally estopped the commission from finding that
claimant's medical treatment after October 1, 1996 was causally
related to his compensable injury by accident.
and not to statements of opinion." Braden v. Isabell K.
Horseley Real Estate, Ltd., 245 Va. 11, 16, 425 S.E.2d 481, 484
(1993). In addition, claimant and his wife testified that his
condition changed and worsened over time.
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First, although employer argued to the commission that
Dr. Daniels' opinion supported a finding that the cost of
claimant's various medical treatments after October 1996 was not
causally related to his compensable injury by accident, employer
did not argue collateral estoppel before the commission.
Accordingly, we will not consider that specific argument on
appeal. See Rule 5A:18.
Secondly, the commission, as fact finder, was entitled to
weigh the medical evidence, to reject Dr. Daniels' opinion, and
to accept the opinions of claimant's current treating
physicians, Drs. Fiore and Decker, that his continuing
disability and medical care were causally related to his
compensable injury by accident. 2 Their opinions provide credible
evidence to support the commission's finding, which is binding
and conclusive upon us on appeal.
III. Dr. Decker's Medical Treatment
In rejecting employer's argument that Dr. Decker's
treatment of claimant's pain syndrome was not reasonable or
necessary, the commission found as follows:
Both Dr. Decker and Dr. Schnoll believe that
appropriate use of narcotics has been
2
We also note that in his October 21, 1996 deposition,
Dr. Daniels opined that claimant's current condition was caused
by a combination of his degenerative disc disease and his motor
vehicle accidents. Moreover, in its May 2, 1997 opinion, the
issue before the commission was whether claimant had proven he
was totally disabled after March 28, 1996. The extent of
claimant's disability, not causation, was the issue determined
by the commission.
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necessary. Dr. Davis stated that a trial of
narcotics was appropriate but since
[claimant's] condition did not improve it
should be discontinued. Clearly, several of
the doctors who previously treated the
claimant were alarmed by the fact that the
claimant was seeking narcotic pain
medication, but they were not pain
management specialists. We are reluctant to
substitute our opinion for the opinion of
the treating physicians.
The medical records and opinions of Drs. Decker and
Schnoll, a pain management specialist and pharmacologist,
respectively, provide credible evidence to support the
commission's findings. Therefore, those findings are binding
and conclusive upon us on appeal. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's finding." Wagner,
12 Va. App. at 894, 407 S.E.2d at 35.
For these reasons, we affirm the commission's decision.
Affirmed.
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