Mt Vernon Hospital v. Brenda A. Whatman ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
MT. VERNON HOSPITAL AND INOVA
HEALTH SYSTEM FOUNDATION, INC.
MEMORANDUM OPINION *
v. Record No. 2651-97-4 PER CURIAM
APRIL 14, 1998
BRENDA A. WHATMAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Eric J. Berghold; McCandlish & Lillard,
P.C., on brief), for appellants.
(James F. Green; Ashcraft & Gerel, on brief),
for appellee.
Mt. Vernon Hospital and its insurer (jointly referred to
herein as employer) contend that the Workers' Compensation
Commission (commission) erred in holding employer responsible for
benefits related to Brenda A. Whatman's (claimant) post-March 20,
1997 left knee problems. Employer argues that the commission
erred in finding that claimant proved that a non-compensable
March 20, 1997 incident aggravated her underlying November 7,
1996 compensable knee injury for which employer had been found
liable. Upon reviewing the record and the briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
On November 7, 1996, claimant sustained a compensable left
knee injury while working for employer as an assistant lab
technician and phlebotomist. Following this incident, claimant
sought medical treatment from Dr. Stuart L. Davidson, an
orthopedic surgeon. On January 14, 1997, Dr. Davidson noted that
claimant "suffered a mishap because her knee buckled and gave
way, twisting her left ankle." 1 On January 20, 1997, Dr.
Davidson noted that claimant's "knee is continuing to be
problematic." On February 3, 1997, Dr. Davidson noted that
claimant's "knee buckled and gave way on her requiring her to go
to using a slide-on elastic knee brace." On February 17, 1997,
Dr. Davidson noted that claimant was no longer wearing the brace,
but that her knee was essentially unchanged. On March 3, 1997,
Dr. Davidson reported that claimant's knee was not swollen, but
she continued "to have feeling of tightness in the peripatellar
area." He gave claimant a prescription for an exercise program.
Dr. Davidson treated claimant again on March 17, 1997, noting
popping in her knee and minimal swelling. On March 20, 1997, Dr.
Davidson noted that claimant had "slipped on some wet ground and
her knee buckled and gave way. She reached out with her left arm
to try and stop her fall and suffered an injury to her left
shoulder as well as exacerbation of her knee injury."
1
Employer did not raise this incident as an intervening
accident that would have insulated it from liability for
continuing medical and disability benefits.
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Dr. Richard L. Gaertner, an orthopedic surgeon, performed
an independent medical examination of claimant on March 27, 1997.
An April 7, 1997 MRI of claimant's left knee was within normal
limits. On April 15, 1997, Dr. Gaertner opined that claimant's
present left knee problems were not related to the injury she
sustained on November 7, 1996.
In holding employer responsible for the effects of the March
20, 1997 incident, the commission found as follows:
[T]here is no evidence that the claimant
suffered any material mechanical or
structural change in the body as a result of
her fall on March 20, 1997. Rather, the MRI
study ordered by orthopaedic surgeon Dr.
Richard L. Gaertner . . . shows only the same
osteoarthritic changes that preexisted even
the work accident on November 7, 1996. Dr.
Gaertner himself interpreted the study as
"within normal limites." [sic] The March
20, 1997 medical report of . . . Dr.
. . . Davidson, which states that
[claimant's] fall on that date was an
"exacerbation of her knee injury," is
uncontradicted and unchallenged, and
constitutes sufficient evidence to support
the Deputy Commissioner's finding. Moreover,
Dr. Davidson's medical report, the only
evidence presented to describe the
"intervening accident," states that
[claimant] fell on wet grass because "her
knee buckled and gave way," which describes a
compensable consequence of the work accident
for which the employer must be liable.
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] injury
was an identifiable incident or sudden precipitating event and
that it resulted in an obvious sudden mechanical or structural
change in the body." Morris v. Morris, 238 Va. 578, 589, 385
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S.E.2d 858, 865 (1989) (citations omitted).
[A]ggravation of an old injury or a
pre-existing condition is not, per se,
tantamount to a "new injury." To be a "new
injury" the incident giving rise to the
aggravation must, in itself, satisfy each of
the requirements for an "injury by accident
arising out of . . . the employment."
First Fed. Sav. & Loan Ass'n v. Gryder, 9 Va. App. 60, 63, 383
S.E.2d 755, 757-58 (1989). "The Commission's finding of fact
that [a subsequent] injury was not a new accident is binding on
appeal if supported by credible evidence." Board of Supervisors
v. Martin, 3 Va. App. 139, 142, 348 S.E.2d 540, 541 (1986).
Claimant's testimony, Dr. Davidson's medical records, and
the April 7, 1997 MRI constitute credible evidence to support the
commission's finding that claimant's post-March 20, 1997 left
knee symptoms and disability resulted from an aggravation of her
previously injured left knee rather than a sudden mechanical or
structural change in her body. Thus, credible evidence supports
the commission's finding that claimant's left knee problems
resulted from a compensable aggravation of her November 7, 1996
injury. "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).
Accordingly, we affirm the commission's decision.
Affirmed.
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