Giodan, Inc. v. Mercedes Mendez ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia
GIODAN, INC., ET AL.
MEMORANDUM OPINION * BY
v. Record No. 1302-97-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 13, 1998
MERCEDES MENDEZ
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William H. Schladt (Ward & Klein, Chartered,
on brief), for appellants.
Manuel R. Geraldo (Robinson and Geraldo, on
brief), for appellee.
Giodan, Inc. (employer) and its insurer, Great American
Insurance Company, appeal the Workers' Compensation Commission's
award of total temporary disability benefits to Mercedes Mendez
(claimant), contending that claimant's back injury is not
causally related to his compensable knee injury. Finding no
error, we affirm.
Claimant is an unskilled laborer from El Salvador who speaks
only Spanish, and cannot read or write in any language. He was
involved in a work-related accident on April 14, 1995, prior to
the time he was hired by employer. After receiving treatment, he
returned to light duty. Upon his return to regular work,
claimant re-injured himself on July 7, 1995. On July 28, 1995,
Dr. Neil Kahanovitz diagnosed claimant with "purely mechanical"
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
low back pain. On November 2, 1995, Dr. Kahanovitz noted that
claimant had a "slightly positive leg raising" test. Dr.
Kahanovitz directed treatment of claimant until November 13,
1995. In his letter of November 13, 1995, Dr. Kahanovitz wrote,
"There is no evidence of any disk herniation. At this time,
there has been no change in the patient's primary diagnosis of
mechanical pain . . . ."
On February 22, 1996, shortly after being employed by
employer, claimant slipped while carrying a table down a flight
of stairs. Claimant testified that when he slipped, he twisted
his back and knee. The Employer's First Report of Accident lists
only an injury to claimant's left knee.
Claimant received treatment at the hospital and was referred
to Dr. Allan Mishra, an orthopedist. Claimant testified that he
had back pain immediately after the accident and told the
hospital doctor about the back pain. Claimant also testified
that he did not have back pain during the period immediately
prior to his accident on February 22, 1996. The hospital
referred claimant to Dr. Allan Mishra, an orthopedist.
Dr. Mishra's initial report does not explicitly mention
claimant's back pain, but notes that he had examined x-rays of
claimant's back and knee and that he directed claimant to undergo
an MRI of his back and knee. An MRI of claimant's knee revealed
a meniscal tear, and an MRI of claimant's back showed central and
right-side herniation of claimant's L5-S1 disk.
2
In a report dated April 16, 1996, Dr. Mishra notes that, "In
the past[, claimant] has had back pain but denied any leg pain.
This new episode could represent a new injury to the back or
radicular symptoms." On May 7, 1996, Dr. Mishra noted that,
"Clinically he has sciatica 1 and left knee medial meniscus tear.
We again feel that the majority of his symptoms are coming from
his back and his knee as a secondary issue at this time." On May
9, claimant filed a claim for benefits.
On June 3, 1996, Dr. Mishra summarized his treatment of
claimant up to that point. His report states in relevant part:
It should be noted that [claimant] had
previous back pain which is documented in his
chart in 1995.
He was seen by Dr. Kahanovitz. At that
time he was extensively worked up and noted
not to have straight leg raising reproducing
pain down his leg and had an MRI. The report
says in his note of 11/95 there was a mild
disk bulging but no frank disk herniation.
The symptoms he presented with in my office
in March and April, 1996 were different from
the symptoms he had in 1995.
He subsequently returned on 4/16/96 with
results of his MRI's which I had the reports
to review but not the actual films. The
report states the 4/8/96 MRI of his back
showed degenerative changes at L4-5 and L5-S1
with a central and right-sided disc
herniation at L5-S1 with compression of the
S1 nerve root. This is a report that is
different than his previous MRI of
11/95. . . . At that time I noted that this
new episode could represent a new injury to
the back because he did not have a positive
1
Sciatica is defined as "a syndrome characterized by pain
radiating from the back into the buttock and into the lower
extremity along its posterior or lateral aspect." Dorland's
Illustrated Medical Dictionary 1493 (28th ed. 1994).
3
straight leg raising test in the past. . . .
He was subsequently seen on
5/7/96. . . . Clinically, again at that
time, I felt he had sciatica and a tear of
the medial meniscus. I again thought that
treatment of his back was more important than
treatment of his knee . . . .
On August 8, 1996, Dr. Mishra again noted that "more of his
trouble is coming from his back at this time."
The deputy commissioner held a hearing on claimant's claim
for benefits on September 20, 1996. Employer defended on the
ground that no injury by accident occurred and that claimant had
a prior injury that was the source of his disability. Employer
presented the Employer's First Report and the testimony of
claimant's co-worker to prove that claimant did not complain of
back pain at the time of the accident. Employer also presented
evidence of claimant's settlement of his prior workers'
compensation claim on March 7, 1996, two weeks after the injury
at issue here, in which claimant's attorney stated that claimant
"has recovered fully. He has had no substantial problems since
the 13th of November, 1995. This claimant has returned to work
already." Claimant signed a notarized statement dated March 8,
1996, that he understood the settlement did not include medical
expenses.
The deputy commissioner left the record open after the
hearing to allow employer's physician the opportunity to review
the MRIs before making his report. After the hearing, employer
presented the report of Dr. Charles Lefton, who concluded that
4
the MRIs showed nerve root compression only on the right,
nonsymptomatic side of claimant's back, and that claimant has "at
the very most muscular ligamentous injury to his lumbar spine."
The deputy commissioner issued an opinion on November 25,
1996 in which it stated that "Dr. Mishra relates claimant's back
injury to the compensable accident and we find that Dr. Lefton
concluded that claimant sustained an injury to his back as a
result of the February 22, 1996 accident." The deputy
commissioner also stated that the medical evidence was
insufficient to establish a causal relationship between the
accident and claimant's herniated disc, although "there is
sufficient evidence to establish a muscular ligamentous injury to
the back and a left knee injury [arising from the accident]
resulting in the disability alleged."
Upon review before the full commission, the decision of the
deputy commissioner was affirmed. The commission noted that
although claimant's initial complaints only involved his knee, he
reported back pain on his initial visit to Dr. Mishra, and Dr.
Mishra "relates the claimant's back and knee problems to the
accident." The commission also agreed with the deputy
commissioner that claimant's right-sided disc herniation is not
related to his left-sided symptoms. Claimant testified that he
told Dr. Mishra of his back injury. 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,
5
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)). "'An
"injury by accident" has three components: (1) an identifiable
incident; (2) a sudden mechanical or structural change in the
body; and (3) a casual [sic] connection between the incident and
the bodily change.'" Ratliff v. Rocco Farm Foods, 16 Va. App.
234, 238, 429 S.E.2d 39, 42 (1993) (quoting Kane Plumbing, Inc.
v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988)).
Only the issue of causation is at issue in this case, and a
determination of causation is a factual finding. CLC Constr.,
Inc. v. Lopez, 20 Va. App. 258, 265, 456 S.E.2d 155, 158 (1995)
(citing Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376
S.E.2d 814, 817 (1989)). "We do not retry the facts before the
Commission nor do we review the weight, preponderance of the
evidence, or the credibility of witnesses. If there is evidence
or reasonable inference that can be drawn from the evidence to
support the Commission's findings, they will not be disturbed by
this Court on appeal, even though there is evidence in the record
to support contrary findings of fact." Caskey v. Dan River
Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983).
In order to demonstrate causation, a claimant must show that
it is more probable than not that his or her disability was
caused by a compensable accident. See Westmoreland Coal Co. v.
Campbell, 7 Va. App. 217, 224, 372 S.E.2d 411, 416 (1988). "If
it is just as likely that the disabling condition resulted from a
6
cause which is not compensable as it is that it resulted from an
accident covered by the Workers' 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.
I.
Claimant's Muscular Ligamentous Injury
On appeal, employer contends that the commission's decision
is without credible evidence to support it because claimant did
not suffer back pain until several weeks after the accident,
because Dr. Mishra was incorrect in relating the back injury to
the accident, and because Dr. Lefton concluded that claimant's
muscular ligamentous back problem was the result of an earlier
injury. We disagree.
As claimant's attending physician, Dr. Mishra's opinion is
entitled to substantial weight. Bassett Burkeville Veneer v.
Slaughter, 21 Va. App. 575, 580, 466 S.E.2d 127, 129 (1996)
(citing C.D.S. Constr. Servs. v. Petrock, 218 Va. 1064, 1071, 243
S.E.2d 236, 241 (1978)). Contrary to employer's claim, Virginia
law does not require that Dr. Mishra explicitly state that
claimant's accident "more probably than not" caused his back
injury; indeed, if the evidence as a whole is sufficient to prove
causation, medical testimony is not required at all. Turcios v.
7
Holiday Inn Fair Oaks, 24 Va. App. 509, 518, 483 S.E.2d 502, 505
(1997).
Although employer presented evidence, and the deputy
commissioner found, that claimant did not complain of back pain
prior to March 18, 1996, that gap in time is not fatal to
claimant's claim, given that Dr. Mishra found a causal connection
between the accident and the back injury. Furthermore, the
commission could consider claimant's testimony that he did
experience back pain immediately after the accident. See Dollar
General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,
154 (1996) (citing Morris v. Badger Powhatan/Figgie Int'l, Inc.,
3 Va. App. 276, 281, 348 S.E.2d 876, 878 (1986)).
Finally, employer's own physician acknowledged that claimant
may have had a muscular ligamentous injury to his back. To
whatever extent Dr. Lefton concluded that claimant had not been
injured, the commission was entitled to determine the weight to
assign Dr. Lefton's report. 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)).
In short, employer asks this Court to weigh the evidence and
find in its favor. Employer's contrary evidence, however, is
immaterial on appellate review as long as credible evidence
supports the decision of the commission. Lopez, 20 Va. App. at
266-67, 456 S.E.2d at 158 (citing Wagner Enters., Inc. v. Brooks,
12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). We find no
8
error in the commission's finding that claimant suffered a
compensable muscular ligamentous injury.
II.
Claimant's Herniated Disk
Claimant contends on appeal that the commission's finding
that the compensable accident caused claimant's muscular
ligamentous back injury but not his herniated disc is logically
flawed and that claimant's medical history supports a finding of
causation. 2
As the party seeking relief, claimant bore the burden of
proof on the issue of causation. Falls Church Constr. Corp. v.
Valle, 21 Va. App. 351, 360, 464 S.E.2d 517, 522 (1995) (citing
Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382
S.E.2d 305, 306 (1989)). Neither the claimant nor any of the
doctors offered an opinion that the accident caused claimant's
herniated disc. Dr. Lefton observed that while claimant showed
herniation on his right side, claimant's pain originates on his
3
left side. The only evidence which claimant points to in
2
Despite the fact that claimant did not file a notice of
appeal, he may raise "additional questions separate from those
presented by the appellant, and any additional relief sought
separate from that requested by the appellant" under Rule 5A:21.
D'Auria v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167
(1986).
3
Claimant argues that he was denied due process by the
deputy commissioner's decision to keep the record open and
receive Dr. Lefton's report into evidence. Although deputy
commissioners have broad discretion to adapt the conduct of
hearings to the circumstances of the case, the proceedings must
comply with due process. Daniel Constr. Co. v. Tolley, 24 Va.
9
support of his claim is the fact that Dr. Kahanovitz concluded on
November 7, 1995 that claimant showed no disc herniation, while
claimant showed disc herniation on April 8, 1996. We find that
credible evidence supports the conclusion of the commission that
the herniated disk is unrelated to claimant's injury and that the
commission's decision was not plainly wrong.
For these reasons, we affirm.
Affirmed.
App. 70, 78, 480 S.E.2d 145, 149 (1997). Claimant's contention
is without merit. Nothing in the record supports the conclusion
that the deputy commissioner's decision to accept post-hearing
evidence only from employer was an abuse of discretion. See id.
at 78-79, 480 S.E.2d at 149. Furthermore, although claimant knew
at the hearing that the deputy commissioner was holding the
record open, he did not raise this argument at the hearing or
after the report had been received. Therefore, he is barred from
raising this issue on appeal. Rule 5A:18.
10