Trellis Cafe Restaurant v. Jean B Dano ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
TRELLIS CAFÉ RESTAURANT AND GRILL
AND MERCHANTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION*
v. Record No. 0499-03-1 PER CURIAM
JULY 1, 2003
JEAN B. DANO
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Arthur T. Aylward; Thomas C. Bunting;
Midkiff, Muncie & Ross, P.C., on briefs), for
appellants.
(Stephen F. Forbes; Mark C. Grohler;
Forbes & Broadwell, on brief), for appellee.
Trellis Café Restaurant and Grill and its insurer contend
the Workers' Compensation Commission erred in finding that
(1) Jean B. Dano sustained a low back injury as a result of her
November 13, 1998 compensable injury by accident; (2) Dano
proved that she developed Chronic Regional Pain Syndrome/Reflex
Sympathetic Dystrophy (CRPS/RSD) as a result of her injury by
accident; (3) Dr. Mark Newman's opinions were credible;
(4) Dano's fall on January 14, 2001 was caused, in part, by her
compensable knee injury; and (5) Dano's January 14, 2001 fall
was causally related under the "two causes rule" to her
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
compensable knee injury. Upon reviewing the record and the
parties' briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
I.
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).
Furthermore, we will uphold on appeal the commission's factual
findings if they are supported by credible evidence. See James
v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d
487, 488 (1989). "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).
Low Back Injury
The commission affirmed the deputy commissioner's finding
that Dano's claim associated with her low back injury was barred
by the statute of limitations. Dano did not appeal that ruling.
Thus, the issue whether the commission erred when it found that
Dano sustained a low back injury at the time of her compensable
November 13, 1998 injury by accident is moot. We, therefore,
will not address it on appeal.
CRPS/RSD
In ruling that Dano proved that she developed CRPS/RSD as a
result of her compensable November 13, 1998 injury by accident,
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the commission gave greater weight to the opinions of Dr. Mark
Newman and Dr. Jeffrey D. Moore, the treating physicians. In so
ruling, the commission made the following findings:
[Dano] suffered from a significant
work-related injury to her left knee
necessitating two surgeries. While we
recognize that the pain in [Dano's] left
knee improved throughout 1999 to the point
that Dr. Newman believed she could return to
work with certain limited restrictions, we
also note that [Dano] continued to complain
of pain in her left knee from the time of
her industrial accident until immediately
before her fall on January 14, 2001. In the
opinion of Dr. Newman, [Dano] developed
CRPS/RSD as a direct result of her
work-related injury and that her CRPS/RSD
caused her continued pain after her two
surgeries in 1999.
Dr. Newman's opinion is supported by
the conclusion of Dr. Moore, another of
[Dano's] treating physicians, who thought
[Dano] was "dealing with a RSD process" when
he referred her to Dr. Newman. Dr. Gibson,
an orthopedist, also examined [Dano] on
October 5, 1999, and concluded that [she]
"probably" suffered from RSD.
In contrast, Dr. Ross, who examined
[Dano] on behalf of the employer on October
13, 1999, questioned [Dano's] diagnosis of
CRPS/RSD. However, Dr. Ross acknowledged
that there was a temperature differential
between [Dano's] two limbs -- a symptom of
CRPS/RSD. Dr. Ross also did not completely
rule out the possibility that [Dano]
suffered from CRPS/RSD when he noted that
her positive reaction to a lumbar
sympathetic block "would support the
diagnosis of [RSD/CRPS]."
The only doctor who has definitely
opined that [Dano] did not develop CRPS/RSD
as a result of her injury on November 13,
1998, is Dr. Broder. Dr. Broder never
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examined [Dano]. He merely examined [her]
medical records and his review of those
records appears to have been selective and
somewhat flawed. Moreover, while Dr.
Newman's expertise is the field of pain
management and thereby implies a certain
degree of experience in diagnosing CRPS/RSD,
Dr. Broder's area of expertise is unclear
from the record.
We also reject the employer's attempt
to discredit Dr. Newman's diagnosis of
CRPS/RSD based upon [Dano's] alleged failure
to advise Dr. Newman of her assault of 1999.
Dr. Newman never testified that [Dano] did
not, in fact, advise him of this incident.
Instead, he testified that he did "not
recall" if she did. Regardless,
Dr. Newman's letter dated October 25, 1999,
to Dr. Moore reflects that [Dano] did tell
Dr. Newman about her assault soon after it
occurred.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). In its role as fact finder, the
commission was entitled to weigh the medical evidence. It did
so and accepted the opinions of the treating physicians, while
rejecting the contrary opinions of Dr. Ross and Dr. Broder.
"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). The opinions of
Dr. Newman and Dr. Moore constitute credible evidence to support
the commission's decision.
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Dano's January 14, 2001 Fall
Dano testified that on January 14, 2001, immediately before
she fell and broke her leg, she "had some twitching in [her]
left knee, and [she] went to step down, and it didn't hold [her]
weight, and [she] fell." As fact finder, the commission
accepted Dano's testimony regarding the January 14, 2001
accident as credible. The commission also concluded that no
evidence in the record established that Dano ever told anyone
that she "slipped and fell down while walking on wet stairs at
home." It is well settled that credibility determinations are
within the fact finder's exclusive purview. Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987).
Based upon Dano's testimony and the medical evidence, the
commission ruled that Dano's January 14, 2001 fall was caused,
in part, by her pre-existing left knee condition. In so ruling,
the commission found as follows:
As late as January 10, 2001, just four days
before her accident, [Dano] complained of "a
grinding sensation with either going up or
down stairs" and "an intermittent sharp,
stabbing sensation at the inferior medial
portion of her patella." These complaints
of pain are consistent with [Dano's] later
description of her fall.
We acknowledge that [Dano's] treating
physician has opined that her fall on
January 14, 2001, was caused, at least in
part, by a back spasm. However, he also
opined that [Dano] probably would have
fallen due to the condition of her knee even
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if she had not suffered from back pain
before she fell. [Dano] testified that she
fell after she felt a back spasm and after
she felt a sensation in her left knee. We
conclude, therefore, that [Dano] fell
because of two causes, one of which -- her
back pain -- relates to an injury which is
barred by the statute of limitations and one
of which -- the pre-existing condition of
her left knee -- was a compensable injury.
The "two-causes rule" provides that a condition which has
two causes, one related to a work injury, and one not, is
compensable and the treatment of that condition is the
employer's responsibility. See Shelton v. Ennis Bus. Forms,
Inc., 1 Va. App. 53, 55, 334 S.E.2d 297, 299 (1985). In
addition, the commission may consider the testimony of a
claimant in determining causation. Henrico County School Bd. v.
Etter, 36 Va. App. 437, 444, 552 S.E.2d 372, 375 (2001).
Contrary to employer's argument, the "more probable than not
rule" is not applicable to this case because that rule
"'addresses those cases where only one of a number of possible
factors caused the disability.'" Id. at 446, 552 S.E.2d at 376(citation omitted).
Dano's testimony, the medical records substantiating her
continuing complaints of ongoing knee pain, and Dr. Newman's
opinion provide credible evidence to support the commission's
finding that Dano's January 14, 2001 fall was caused, in part,
by her compensable November 13, 1998 knee injury. Accordingly,
that finding is binding and conclusive upon us on appeal.
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II.
For these reasons, we affirm the commission's decision.
Affirmed.
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