Mark Stadler v. Thyssenkrupp Elevator Corporation and Indemnity Insurance Company of N. America ( 2016 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Chafin and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
MARK STADLER
MEMORANDUM OPINION* BY
v. Record No. 1920-15-2 JUDGE ROBERT J. HUMPHREYS
APRIL 26, 2016
THYSSENKRUPP ELEVATOR CORPORATION AND
INDEMNITY INSURANCE COMPANY
OF N. AMERICA
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Louis D. Snesil (Marks & Harrison, P.C., on brief), for appellant.
Roberta A. Perko (Christopher M. Kite; Lucas & Kite, PLC, on
brief), for appellees.
Mark Stadler (“Stadler”) appeals the decision of the Virginia Workers’ Compensation
Commission (the “Commission”) denying his claim for medical benefits and temporary total
disability benefits for a right shoulder injury resulting from two falls on July 22, 2014. Stadler
argues that the Commission erred in determining he failed to carry his burden of proof that his
right shoulder condition was causally related to the two falls and in disregarding the credibility
determination of the deputy commissioner of his own testimony.
Stadler first asserts that the Commission erred in determining he failed to prove that his
shoulder injury was causally related to the accident on July 22, 2014. It is well settled under
Virginia law that the claimant bears the burden of establishing, by a preponderance of the
evidence, that he sustained a compensable injury. Woody v. Mark Winkler Mgmt., Inc., 1
Va. App. 147, 150, 336 S.E.2d 518, 520 (1985). In order to prove that a claimant suffered a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
compensable injury by accident, the claimant must prove, “(1) an identifiable incident; (2) that
occurs at some reasonably definite time; (3) an obvious sudden mechanical or structural change
in the body; and (4) a causal connection between the incident and the bodily change.”
Chesterfield Cnty. v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181 (1990). On appeal from
the Commission, “we review the evidence in the light most favorable to the prevailing party.”
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
Commission’s determination of causation is a factual finding that will not be disturbed on appeal
if supported by credible evidence. Corning, Inc. v. Testerman, 25 Va. App. 332, 339, 488 S.E.2d
642, 645 (1997). “In 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.” Pruden v. Plasser American Corp., 45 Va. App. 566, 574-75, 612
S.E.2d 738, 742 (2005). “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 Enters.,
Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
In this case, there is ample evidence in the record to support the Commission’s factual
finding that Stadler failed to meet his burden to establish that his right shoulder injury was
causally related to one or both of his falls on July 22, 2014. When Stadler returned to the office
after his falls on the job site, he told his supervisor that he had fallen twice on his right shoulder,
that it was “sore,” and that it “hurt,” but declined to seek medical care because he believed the
injury would resolve itself. Stadler continued to work for the next week and a half to two weeks
after his falls before leaving on a scheduled vacation.
Stadler did not seek medical attention for his shoulder until September 8, 2014, when
Dr. Nordt noted he was treating Stadler for “ongoing right shoulder pain” in addition to a knee
injury Stadler sustained while on vacation two weeks after his falls. On September 23, 2014,
-2-
Dr. Nordt completed his portion of a National Elevator Industry Health Benefit Plan form,
indicating that Stadler’s disability was not “in any way related to” his “employment.” Stadler
followed up with Dr. Nordt on October 8, 2014. The office note indicates that Stadler “made it
clear that this is a work-related injury that happened about July 23rd.” Stadler reported injuring
his shoulder twice on that day, but the note does not describe how the injury occurred, nor does it
contain any medical opinion linking the shoulder injury to an accident at work. The
pre-operatory note from October 28, 2014 specifically states that Stadler’s shoulder surgery was
not “Work Comp” related. Thus, the Commission did not err in finding that the medical
evidence did not establish any causal link between Stadler’s accident on July 22, 2014 and the
injury to his right shoulder he was subsequently treated for.
Stadler’s second assignment of error claims that the Commission erred by “disregarding
the credibility determination of the [d]eputy and the testimony of Stadler.” Specifically, Stadler
argues that because the deputy commissioner found Stadler’s testimony to be “credible in all
facets,” the Commission erred in disregarding his testimony where the medical evidence was not
conclusive as to the causation of his injury. We agree that the causal link may be established
through the testimony of the claimant, particularly in cases where the medical testimony is
inconclusive. See Dollar Gen. Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154
(1996). Here, however, the medical causation was not inconclusive, as the medical evidence
consistently reported that the injury was not related to Stadler’s two falls on July 22, 2014.
Further, the Commission clearly considered claimant’s testimony in reaching its decision.
In its opinion, the Commission noted that it “fully agree[d] that the claimant’s testimony was
credible” and it did “not dispute that the claimant fell twice while at work on July 22, 2014.” It
is noteworthy that Stadler’s testimony described his falls and his shoulder injury, but never
explicitly stated that his injury was caused by the falls. After considering all of the evidence, the
-3-
Commission simply did not find Stadler’s testimony to be persuasive in light of the clear medical
causation opinion of Dr. Nordt provided on the National Elevator Industry Health Benefit Plan
form on September 23, 2014 and on the pre-operatory note from October 28, 2014. To find in
Stadler’s favor would require us to reweigh the evidence, which we will not do.
Therefore, we conclude that the Commission’s factual finding that Stadler failed to meet
his burden to establish that his right shoulder injury was caused by his falls on July 22, 2014 was
supported by credible evidence in the record. Accordingly, we affirm the decision of the
Commission.
Affirmed.
-4-