Virginia Electric & Power Company v. W. Crawford ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia
VIRGINIA ELECTRIC & POWER COMPANY
MEMORANDUM OPINION* BY
v. Record No. 2939-00-3 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 11, 2001
WILLIAM FREZELL CRAWFORD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Iris W. Redmond (Susan Moloney Smith;
Midkiff, Muncie & Ross, P.C., on brief), for
appellant.
A. Thomas Lane, Jr., for appellee.
Virginia Electric & Power Company appeals the Workers'
Compensation Commission's award of benefits to William Frezell
Crawford. The employer contends the commission erred in finding
the worker (1) established a change in condition, (2) was not
barred by the statute of limitations, and (3) was not estopped
from asserting his claim. For the following reasons, we affirm.
The award arises from a change of condition application
filed February 22, 1999. It alleged the worker's condition from
a 1992 injury had deteriorated to a temporary total disability.
The deputy commissioner awarded benefits, and the commission
affirmed the award.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The worker suffered a compensable injury by accident to his
back on January 17, 1992 while working as a lineman. On
February 27, 1992 he had L5-S1 surgery and has suffered from S1
radiculopathy on the right side since then. He received a number
of different awards after the 1992 injury, was restricted to
light duty, and worked thereafter in selective employment as a
meter reader.
The worker twisted his back exiting a truck in March, 1997.
The employer terminated the worker in April, 1997 when he was no
longer able to work. He continued to have pain and weakness in
his back and legs, wore a lumbar support belt and had a second
laminectomy on October 30, 1997. After the operation his pain
increased, and he needed a walker.
The worker applied for benefits alleging the injury arose
out of the March, 1997 accident. He maintained that he could
never go back to work because of that injury to his back, but
the commission found that the injury did not arise out of the
March, 1997 accident. This Court affirmed the commission on
October 5, 1999. The worker then proceeded with this change of
condition application.
First, we review the finding that the worker proved his
current condition was a change of condition of the injury
received in 1992. We review the evidence in the light most
favorable to the worker, the prevailing party below. R.G. Moore
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Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,
788 (1990).
In an application for review of an award on the ground of a
change in condition, the worker has the burden to prove his
allegations by a preponderance of the evidence. J.A. Jones
Constr. Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 202, 204
(1956). The commission's determination of causation is a
factual finding that is binding on appeal when supported by
credible evidence. Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991). "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." Id.
(citation omitted).
After the laminectomy in October, 1997, the worker had
increased pain and was unable to walk without a walker. On
June 8, 1998, Dr. E. Franklin Pence, Jr. opined, "[B]ased on my
examinations of the patient combined with the above testing and
conversations with the patient's physical therapists, he has
been and is still unable to work including a sedentary type
position." Dr. Pence confirmed the presence of a radiculopathy
on the right side and noted the "onset of pain in 1992."
Dr. David S. Klein examined the worker on July 6, 1999 and
opined, "Clearly, the patient is suffering from the injury
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sustained in 1992, which never resolved, resulted in a second
surgery and worsening following that."
Dr. Bart W. Balint also examined the worker and reviewed
his medical records. He opined on December 20, 1999: "[The]
case is one of clear causality between his Worker Comp injury of
1992 and subsequent picture presenting at this time. His early
studies show significant disc changes at both L4-5 and L5-S1.
Unfortunately, his second work related injury caused the L4-5
disc to rupture and cause significant problems." Dr. Balint
concluded in a letter to the worker's counsel: "It is my
medical opinion that more probably than not, the above diagnosed
conditions as correlated to [the worker] are directly related to
[his] January 17, 1992 industrial accident. Furthermore, it is
my medical opinion that Mr. Crawford is totally disabled as a
result of the January 17, 1992 industrial accident."
Dr. Willie Thompson reviewed the worker's medical records
at the employer's request. Dr. Thompson was "unable to
establish a causal relationship between the patient's present
symptoms and the injury of January 17, 1992." He concluded it
was "impossible to relate the patient's present symptoms to a
fall that occurred in January of 1992" and was in "total
disagreement" with Dr. Balint's opinion.
Medical evidence is subject to the commission's
consideration and weighing. Hungerford Mech. Corp. v. Hobson,
11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). Drs. Klein
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and Balint attributed the worker's current disability to his
1992 injury. They had reviewed the worker's medical records and
examined him. While Dr. Thompson totally disagreed with their
conclusion, he never examined the worker. As a result, the
commission gave Dr. Thompson's opinion little weight. 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., 12 Va. App. at 894, 407
S.E.2d at 35. We conclude the commission did not err in finding
that the worker proved a change in condition and that such
change was caused by the 1992 injury.
Next, we consider whether the statute of limitations or
doctrine of estoppel barred the worker's change-in-condition
claim. The commission ruled that Code § 65.2-708 controlled and
subsection (C) 1 extended the statute of limitations to March,
1999, which made the February, 1999 claim timely. The
commission also ruled estoppel did not bar the claim because
"the present Claim was not 'inconsistent' with prior
1
Code § 65.2-708(C) provides:
All wages paid, for a period not exceeding
twenty-four consecutive months, to an
employee (i) who is physically unable to
return to his pre-injury work due to a
compensable injury and (ii) who is provided
work within his capacity at a wage equal to
or greater than his pre-injury wage, shall
be considered compensation.
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litigation," and it was "for benefits relating to disability
that was established by medical evidence dated after March
1997."
The employer maintains the applicable statute of
limitations is the one-year limitation in Code § 65.2-501. That
section applies when the worker has not had a change in
condition and is at the same disability level before and after
an award. Armstrong Furniture v. Elder, 4 Va. App. 238, 244,
356 S.E.2d 614, 617 (1987) (citing Code § 65.1-56, now Code
§ 65.2-501). This case was a claim for change of condition:
the worker had returned to light duty work, payments had ceased,
and he claimed he was currently totally disabled. Having
concluded the evidence supported the commission's finding of a
change of condition, we also conclude that Code § 65.2-501 does
not control.
Code § 65.2-708(A) establishes a two-year statute of
limitations for a change of condition application. Subsection
(C) extends that period "to prevent employers from lulling
partially disabled workers into a false sense of security during
this two year period by providing employees light duty work at
their pre-injury wage for two years and then terminating the
employee without liability for future disability benefits."
Scott v. Scott & Am. Cas. Co., 16 Va. App. 815, 819, 433 S.E.2d
259, 262 (1993) (citation omitted).
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In this case, the worker was restricted to light-duty work
and worked as a meter reader after 1992. The medical records
demonstrate continued weakness in his back and legs, inability
to walk or sit for long periods of time, radiculopathy on the
right side, and continued lifting and climbing restrictions.
The worker never returned to his work as a lineman and was
unable to do that work. The employer paid the worker for
selective employment as a meter reader in lieu of benefits at a
wage equal to or greater than his pre-injury wage until March,
1997. The two-year statute of limitations did not run until
March, 1999, making the worker's application filed February,
1999 timely.
Finally, we consider whether the worker is estopped from
claiming a change of condition. The employer contends that the
worker asserted facts inconsistent with those used to prove his
earlier claim that the March 17, 1997 accident caused his
current disability. It maintains the worker filed the identical
claim and alleged the 1992 accident caused the same condition
after the commission found against him on the first claim.
We are not able to review this part of the decision by the
commission because the appendix does not include the
commission's earlier opinion or the evidence given in support of
the first claim. We cannot decide the issue of estoppel without
that information. Anderson v. Commonwealth, 251 Va. 437, 439,
470 S.E.2d 862, 863 (1996) (adequate record required to consider
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estoppel argument). Rule 5A:25(C)(3) provides that "[a]n
appendix shall include . . . any testimony or other incidents of
the case germane to the questions presented." "The appendix is
a tool vital to the function of the appellate process in
Virginia. . . . By requiring the inclusion of all parts of the
record germane to the issues, the Rules promote the cause of
plenary justice." Thrasher v. Burlage, 219 Va. 1007, 1009-10,
254 S.E.2d 64, 66 (1979). Because the appendix does not contain
essential parts of the record, we do not decide this issue.
For the reasons stated, we affirm the commission's award of
benefits.
Affirmed.
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