Northside Electric Co. v. Norbert S. Hicks ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia
NORTHSIDE ELECTRIC COMPANY and
PENNSYLVANIA GENERAL INSURANCE
COMPANY
MEMORANDUM OPINION * BY
v. Record No. 3105-96-2 JUDGE JAMES W. BENTON, JR.
JUNE 24, 1997
NORBERT STEWART HICKS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford C. Jacob (William C. Walker; Taylor &
Walker, P.C., on brief), for appellants.
B. Mayes Marks, Jr., for appellee.
The Workers' Compensation Commission awarded Norbert S.
Hicks disability benefits for various periods and the reasonable
cost of his medical care. Northside Electric Company contends
that the commission erred in finding (1) that Hicks' hearing loss
was causally related to his injury by accident, and (2) that
treatment by three physicians was authorized. We affirm the
award.
I.
The principle is well established that the commission's
factual findings are conclusive and binding on this Court if they
are supported by credible evidence. See Code § 65.2-706;
Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409
S.E.2d 824, 826 (1991). "The actual determination of causation
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
is a factual finding that will not be disturbed on appeal if
there is credible evidence to support the finding." Ingersoll-
Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817
(1989).
"Following established principles, 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). So viewed, the evidence proved that during Hicks'
employment with Northside Hicks suffered an electrical shock
while repairing a neon light. Hicks reached into an electrical
box and was shocked with 15,000 volts of electricity. No
controversy exists concerning the occurrence of this event.
Hicks testified that he immediately noticed a change in his
hearing. Before the accident, Hicks owned hearing aids but only
wore them when he went to church. He did not wear them to work
and did not have them with him when the accident occurred. After
the accident, Hicks had to turn the television up louder to hear
it. Hicks also testified that he had to adjust his hearing aids
to the highest volume setting to hear.
During the course of treatment for numbness and back pain
caused by the shock, Hicks went to see Dr. Alvin Goldstone, an
otolaryngologist who had been treating Hicks for approximately 20
years for hearing problems. Dr. Goldstone had previously
diagnosed Hicks with "sensory neural hearing loss." Dr.
Goldstone opined that Hicks' hearing problems were "aggravated,
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exacerbated, and/or accelerated when he was shocked with a high
voltage of electricity on June 8, 1995." Dr. Goldstone reported
"sensory neural loss of hearing, which has worsened."
Dr. Leslie S. Kreisler, a doctor hired by the employer,
examined Hicks and disagreed with Dr. Goldstone's opinion. Dr.
Kreisler stated that there was "no true documentation of sound
levels or progression before or after the injury." Dr. Kreisler
concluded that he could not "state with any reasonable degree of
medical probability whether the electric shock injury increased
. . . Hicks['] loss."
The commission found Dr. Goldstone's testimony and reports
to be credible. In particular, the commission made the following
findings:
It was initially Dr. Goldstone's opinion, as
set forth in his narrative reports, that the
increase in the loss of hearing was caused by
the electrical shock. . . . The increase in
the loss of hearing since [Hicks'] last visit
on November 25, 1991, is documented. When
Dr. Goldstone saw [Hicks] on January 5, 1996,
some seven months after the industrial
accident, he was not aware of the limited
duck hunting with a shotgun in November or
December 1995.
It remained Dr. Goldstone's opinion that
the electrical shock caused the increase in
the hearing loss, although he acknowledged,
with refreshing candor, that he could not
explain exactly how an electrical current
passing through the body could cause this
result. Repeated efforts to have him testify
that [Hicks] was malingering was
unsuccessful, and he did not waiver from his
opinion on causation. Neither was Dr.
Goldstone impressed with the limited hunting
activities. Finally, it is clear that his
opinion as to causation was based largely on
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the history of hearing loss immediately
following the shock. However, Dr. Goldstone
also described [Hicks'] frankness and the
reasons he felt that he was a reliable
historian. The Deputy Commissioner's finding
that the employer is responsible for the cost
of this medical treatment for the increase in
hearing loss, commencing with January 5,
1996, is supported by the record and is
affirmed upon Review. The finding, as to
those issues raised by the employer upon
Review, are, therefore, affirmed.
Northside argues that Dr. Kreisler's opinion was more
credible. The principle is well established that "[a] question
raised by conflicting medical opinion is a question of fact."
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986). Thus, "[q]uestions 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).
The commission was not required to accept Dr. Kreisler's
opinion that he was unable to find that the shock increased
Hicks' hearing loss. Although Dr. Kreisler noted that
psychiatrists that perform electroshock therapy using 150 to 180
volts have not documented cases of hearing loss, the evidence in
this case is that Hicks came in contact with a 15,000 volt
electrical line. The commission weighed the conflicting reports
and provided a cogent reason for accepting Dr. Goldstone's
opinion. Accordingly, we hold that Dr. Goldstone's opinion that
the severe electrical shock aggravated Hicks' underlying
condition is credible evidence that supports the award. Cf.
Farrar, 13 Va. App. at 233-34, 409 S.E.2d at 828.
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II.
After Hicks reported the incident to his supervisor,
Northside did not give Hicks a panel of doctors to choose from.
Hicks visited Dr. Martirosian, a cardiologist he had previously
seen for an enlarged valve in his heart. Dr. Martirosian ordered
tests and could not determine what was wrong with Hicks. Hicks
then went to see Dr. Melhorn, an osteopath Hicks considered to be
his family doctor. Dr. Melhorn sent Hicks to have an MRI, which
indicated that nothing was wrong with Hicks' lower back.
Dr. Martirosian referred Hicks to Dr. Velo, a neurosurgeon.
Dr. Velo concluded that Hicks' "trouble was in [his] neck" and
recommended surgery. Hicks' wife talked to Northside's insurance
representative and told the representative that Hicks had seen
Dr. Martirosian, Dr. Velo, and Dr. Melhorn. At that time, Hicks
had not seen any other doctors. The representative did not tell
Hicks' wife to take Hicks to a particular doctor or to continue
seeing Dr. Velo.
Hicks talked to Dr. Velo about the possibility of a second
opinion. Hicks mentioned to Dr. Velo that he wanted to see Dr.
Isaacs, a doctor that had been treating Hicks' wife. Dr. Isaacs
examined Hicks and noted in his report that he reviewed Dr.
Velo's reports. Dr. Isaacs sent a copy of his report to Dr.
Velo. After examining Hicks, Dr. Isaacs referred Hicks to Dr.
Allen.
Hicks initially met with Dr. Allen and later was treated by
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Dr. Allen's partner, Dr. Melisi, when Dr. Allen was out of the
country. Northside's insurance carrier eventually referred
Hicks' wife to a nurse who worked for the insurance carrier.
Hicks' wife told the nurse that Hicks had seen Drs. Martirosian,
Velo, Isaacs, and Allen. The nurse told Hicks' wife that Dr.
Allen belonged to "a good group of doctors." Dr. Allen
recommended, and Dr. Melisi ultimately performed, the same
surgery Dr. Velo had originally recommended.
The commission made the following findings:
The initial course of treatment through
Dr. Velo's last examination on October 3,
1995, is not contested by [Northside] . . . .
We find that the course of treatment
commencing with Dr. Isaacs was upon referral,
rather than a change in physicians initiated
by [Hicks], as argued by [Northside] upon
Review. Surgery was recommended and he was
clearly within his rights in requesting a
second opinion. Dr. Velo acquiesced and
referred [Hicks] for this purpose. However,
Dr. Isaacs did not undertake treatment but
only evaluated him as requested. He reported
his findings to Dr. Velo and recommended
against surgery, but at the same time,
referred [Hicks] for further neurologic
evaluation. At that point, surgery was
recommended, and he came under the care of
Dr. Allen and physicians in his medical
group. Dr. Velo did not see [Hicks] after
October 3, 1995, and there is no duplication
of medical treatment. [Northside's]
insurance carrier was clearly informed of
this course of treatment commencing with Dr.
Isaacs and offered no objection. The record
establishes a clear chain of referrals by
treating physicians for the industrial
injury. The Deputy Commissioner's finding
that [Northside] should be responsible for
the cost of treatment by Drs. Allen, Melisi,
and Isaacs, as well as the cost of surgery,
is, therefore, affirmed.
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Credible evidence in the record supports the commission's
finding that when Dr. Velo recommended surgery, Hicks
appropriately requested a second opinion. That Hicks suggested
to Dr. Velo that Dr. Isaacs be the physician to render a second
opinion is of no moment. Dr. Isaacs examined Hicks, reviewed Dr.
Velo's reports, and advised Dr. Velo of his findings. The
commission's finding that Dr. Velo acquiesced in both the review
by Dr. Isaacs and the later referral is supported by the record.
"If there is evidence or reasonable inference that can be drawn
from the evidence to support the [c]ommission's findings, they
will not be disturbed by this Court on appeal . . . ." Caskey v.
Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11
(1983). We do not retry the facts or review the weight of the
evidence. See id.
In addition, the record is uncontradicted that Northside
failed to provide Hicks with the opportunity to select a
physician from a panel of at least three physicians as required
by Code § 65.2-603(A)(1). Also uncontradicted is the evidence
that Hicks' wife contacted Northside's insurance carrier when
Hicks was seeking treatment from various doctors. The carrier's
silence and the nurse's positive comments regarding Dr. Allen
were reasonably interpreted by Hicks as authorization for the
treatment.
For these reasons, we affirm the award.
Affirmed.
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