Home Entertainment Video v. Karen L. Toombs ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
HOME ENTERTAINMENT VIDEO AND
NATIONWIDE MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1394-97-2 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 9, 1997
KAREN L. TOOMBS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William F. Karn (William B. Pierce, Jr.;
Pierce & Howard, P.C., on brief), for
appellants.
No brief or argument for appellee.
Home Entertainment Video (employer) and its insurer appeal
the decision of the full commission awarding benefits to Karen L.
Toombs (claimant) on the basis that claimant's injury is not
causally related to her compensable accident. Finding no error
in the commission's decision, we affirm.
Claimant's injury in this case arose while shoveling snow at
her place of employment on February 2, 1996. As she tried to
lift the snow-filled shovel, she experienced a pain in her back.
She was examined several days later by orthopaedic surgeon,
Dr. Jeffrey K. Wilson, who diagnosed a lumbar strain. Claimant
had previously sought treatment for back pain from Dr. Wilson in
August 1993. In his record of the August 1993 visit, Dr. Wilson
states that he had seen claimant in 1990, "at which time she had
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
a mild right I5 radiculopathy and spondylolysis 1 at the L5-S1
level" but no other significant abnormality.
In conjunction with the February 1996 injury, claimant was
treated with an epidural steroid injection on April 16, 1996 to
resolve pain which had persisted since the accident.
Subsequently, Dr. Wilson described claimant's spondylolisthesis
as "chronically symptomatic," and referred claimant to Dr. David
C. Urquia, another orthopedic surgeon.
Subsequent to his diagnosis that claimant suffered from
pars defects and spondylolisthesis, Dr. Urquia performed fusion
surgery on June 14, 1996. Dr. Urquia stated that the lumbar
strain, which the claimant suffered as a result of her accident,
had resolved by April 16, 1996. In his opinion, the claimant's
continuing pain resulted from either chronic wear and tear or a
congenital condition and he considered it "very unlikely that
minor trauma such as a back strain from shovelling snow would
have produced bilateral pars defects."
Claimant returned to work on August 29, 1996. On September
5, 1996, she filed a claim for benefits for the period June 14,
1996 to August 28, 1996. The deputy commissioner issued an
opinion in which he denied claimant's claim for benefits,
1
"Spondylolysis" is defined as "dissolution of a vertebra."
Dorland's Illustrated Medical Dictionary 1563 (1994).
"Spondylolisthesis" is defined as "forward displacement (olisthy)
of one vertebra over another, usually of the fifth lumbar over
the body of the sacrum, or of the fourth lumbar over the fifth,
usually due to a developmental defect in the pars
interarticularis." Id.
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concluding that "the claimant's pre-existing back condition,
rather than any aggravation of it by her accident[,] was the
cause of claimant's medical problems and disability after April
16, 1996." On May 28, 1997, the full commission reversed the
decision of the deputy commissioner. It is from this decision
that employer appeals.
On appellate review, we view the evidence in the light most
favorable to the party prevailing below. Brown v. Tidewater
Constr. Corp., 19 Va. App. 676, 677, 454 S.E.2d 42, 42 (1995)
(citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212,
390 S.E.2d 788, 788 (1990)). Generally, "'[t]he actual
determination of causation is a factual finding that will not be
disturbed on appeal if there is credible evidence to support the
finding.'" CLC Constr., Inc. v. Lopez, 20 Va. App. 258, 265, 456
S.E.2d 155, 158 (1995) (quoting Ingersoll-Rand Co. v. Musick, 7
Va. App. 684, 688, 376 S.E.2d 814, 817 (1989)).
It is firmly established in Virginia law that "the employer
takes the employee as the employer finds the employee, even where
the employee suffers some physical infirmity." Williams Indus.,
Inc. v. Wagoner, 24 Va. App. 181, 187-88, 480 S.E.2d 788, 791
(1997) (citing Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373
S.E.2d 725, 726 (1988)). Following this axiom, the Virginia
Supreme Court has held that an injury which aggravates or
accelerates a pre-existing condition is compensable. Ohio Valley
Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555
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(1985).
In evaluating the sufficiency of the evidence to support the
commission's finding, we must determine whether the evidence
establishes more than a "purely theoretical possibility of
aggravation and causal connection." Eccon Constr. Co. v. Lucas,
221 Va. 786, 790, 273 S.E.2d 797, 799 (1981). "If it is just as
likely that the disabling condition resulted from a cause which
is not compensable as it is that it resulted from an accident
covered by the Worker's Compensation Act, the employee has failed
to establish the requisite causal connection." King's Market v.
Porter, 227 Va. 478, 484, 317 S.E.2d 146, 149 (1984) (citing
Carter v. Hercules Powder Co., 182 Va. 282, 288, 28 S.E.2d 736,
738 (1944)). In other words, the claimant must establish
causality by a preponderance of the evidence.
The finder of fact may determine what weight to assign to
expert opinion, even if that opinion is uncontradicted. Street
v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en
banc) (citing Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986)). Furthermore, "causation between an
injury and a disability need not be established by the testimony
of a medical expert." Turcios v. Holiday Inn Fair Oaks, 24 Va.
App. 509, 517, 483 S.E.2d 502, 506 (1997) (citing Dollar General
Store v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 154-55
(1996)).
Applying these principles, we find that the commission's
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finding of causation is supported by the evidence. While the
medical records from 1993 indicate that claimant had
"spondylolysis at the L5-S1 level" and degeneration of the L5-S1
disc with central bulging, as the commission noted, no evidence
showed that claimant's back problems caused her any work
disability prior to her accident. Furthermore, claimant had not
been treated for back pain from 1993 to the time of the accident.
After the February 2, 1996 accident, Dr. Wilson diagnosed her
problem as lumbar strain. Dr. Urquia also recognized that, while
claimant had "a chronic history of symptoms, . . . the last three
months have been worsening [in] pain."
Based on claimant's testimony, and the medical records from
1993 as well as those related to the accident, the commission
reasoned that claimant did not have significant back pain until
the accident, when more serious back pain developed and concluded
that "this is one of those rare and unusual cases alluded to by
Dr. Urquia" where shovelling snow had caused a more serious back
injury "superimposed upon a pre-existing condition." The
credible evidence supports the commission's finding that
claimant's compensable accident aggravated claimant's
pre-existing back condition, causing claimant chronic back pain,
and we affirm.
Affirmed.
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