Advance Auto and Indemnity Insurance Company of North America v. Brenda Lee Craft

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Chafin
PUBLISHED
Argued at Lexington, Virginia
ADVANCE AUTO AND INDEMNITY INSURANCE
COMPANY OF NORTH AMERICA
OPINION BY
v. Record No. 2049-13-3 JUDGE TERESA M. CHAFIN
JUNE 24, 2014
BRENDA LEE CRAFT
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
J. Derek Turrietta (W. Russell Himes; Stackhouse, Nexsen &
Turrietta, on briefs), for appellant.
Kerry S. Hay for appellee.
Advance Auto and Indemnity Insurance Company of North America (referred to
collectively as “the employer”) appeal a decision of the Virginia Workers’ Compensation
Commission (“the commission”) awarding Brenda Lee Craft (“Craft”) benefits for cervical and
thoracic spinal injuries resulting from an accident at work. On appeal, the employer argues that
the commission erred by concluding that Craft’s claim for benefits was not barred by the
principles of res judicata outlined in Starbucks Coffee Co. v. Shy, 61 Va. App. 229, 734 S.E.2d
683 (2012). The employer also contends that the commission erred in finding that Craft injured
her spine through her work-related accident and that medical treatment of Craft’s spinal injuries
was necessary. For the reasons that follow, we disagree with the employer’s arguments and
affirm the commission’s decision.
I. BACKGROUND
On appeal, this Court views the evidence in the light most favorable to Craft, the
prevailing party below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). So viewed, the evidence established that Craft sustained an injury at
work on September 13, 2009, while removing a set of rotors from a shelf above her head. When
she lifted the rotors from the shelf, Craft felt a “pull” in her left shoulder and left scapular region.
Craft notified the employer of her injury and sought medical treatment.
A. CRAFT’S MEDICAL TREATMENT AND DIAGNOSIS
Craft visited her family practitioner, Dr. Mario Hernandez, on the day after the accident
for treatment concerning pain in her neck. She returned to Dr. Hernandez’s office two days later
complaining of neck pain radiating into her left shoulder and numbness and tingling in her left
hand. Dr. Hernandez noted that Craft had previously undergone a cervical fusion of the C5-7
vertebrae, and referred her for an MRI of her cervical spine and a neurosurgery evaluation. On
September 18, 2009, Craft underwent an MRI of her cervical spine. Dr. Kelly Cassedy
compared the results of this MRI to a previous CT scan post myelogram from February 25, 2005.
The MRI showed a new left lateral recess disc extrusion at C7-T1 and left C8 nerve root
compression.
On September 21, 2009, Craft was treated by April Stidham, family nurse practitioner for
Dr. Souhail Shamiyeh. During this visit, Craft was diagnosed with a work-related neck injury.
The notes from this visit discussed Craft’s September 13, 2009 work accident and her subsequent
MRI revealing a new disc extrusion at C7-T1. Additionally, Craft was treated at Stone Mountain
Health Services on October 9, 2009. The chart notes from that visit discussed her work accident
and the new left lateral recess disc extrusion from C6-T1 depicted by the most recent MRI of her
cervical spine.
Craft was treated by Dr. Ken Smith, neurosurgeon, on October 19, 2009. Dr. Smith
examined Craft and noted her history of cervical difficulties and her prior cervical fusion. He
noted that after the prior fusion surgery Craft had “progressed quite well with complete
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resolution of the neck and upper extremity pain and resumed her usual activities without
difficulty.” Dr. Smith linked the September 13, 2009 work accident with the development of
neck and left trapezial and scapular pain, and noted Craft’s difficulty with the range of motion in
her cervical spine and her hand numbness. Dr. Smith’s examination revealed moderate cervical
paraspinous muscle contractions and tenderness of the cervical spine. He diagnosed Craft with
cervical herniated nucleus pulposus without myelopathy, cervical spondylosis without
myelopathy, cervical degenerative disc disease, cervical radiculopathy, and neck pain. Dr. Smith
recommended structured physical therapy and medication management.
Craft returned to Dr. Smith on November 30, 2009, complaining of persistent cervical
and left upper extremity pain. Dr. Smith reviewed the cervical MRI from September 18, 2009,
and noted the disc extrusion at C7-T1. Dr. Smith recommended continuing physical therapy and
referred Craft to Dr. William M. Platt, physiatrist, for a pain clinic evaluation for cervical
epidural steroid injections and treatment of cervical pain.
Dr. Platt first examined Craft on December 14, 2009. He recorded the history of her
work accident and the C7-T1 disc protrusion. Dr. Platt assessed an acute work-related neck
injury with left upper extremity cervical brachial radiculitis with C7-T1 disc protrusion. He also
diagnosed fibromyalgia, cervical degenerative disc disease, cervical brachial radiculitis, and
cervical post-laminectomy syndrome.
On February 1, 2010, Craft was evaluated by Dr. Joshua H. Dalton, osteopath. Craft
reported left shoulder pain following the September 13, 2009 work accident that radiated into her
upper arm and neck, and weakness and numbness in those areas. On examination, Craft’s
strength in her upper extremities was 5/5. Dr. Dalton reviewed Craft’s medical records and
composed a letter documenting his opinions. Although Dr. Dalton diagnosed shoulder pain, he
concluded that Craft’s normal range of motion, reflexes, strength, and lack of muscle atrophy did
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not correlate with a nerve root compression at C8. Dr. Dalton opined that the only information
in the record supporting a causal relationship between the accident and the alleged injuries was
the September 18, 2009 MRI showing a new left lateral recess disc extrusion at C7-T1 with C8
nerve root compression. While Dr. Dalton admitted the MRI indicated “that some change had
occurred” between the September 18, 2009 MRI and the February 25, 2005 CT scan, he stated
that the MRI failed to indicate what caused this change. Dr. Dalton further noted that Craft’s
medical history contained pre-existing conditions, including a motor vehicle accident, a cervical
fusion, and fibromyalgia, which could have impacted her current condition.
Craft underwent another CT scan post myelogram on July 27, 2010. This scan revealed
that the left lateral foraminal herniation at C7-T1 had diminished in size and that the herniation
abutted but did not definitively compress the left C8 nerve root. On October 11, 2010, Dr. Platt
noted that Craft had undergone a series of cervical epidural injections and was using a TENS unit
to control her pain and that she wanted to avoid another cervical fusion. Dr. Platt opined that
Craft was nearing maximum medical improvement.
Craft was treated by Dr. David A. Wiles, neurosurgeon, on May 20, 2010, on referral
from Dr. Shamiyeh. Dr. Wiles diagnosed C8 radiculopathy on the left and a C7-T1 herniated
disc on the left. He opined that “[w]ith respect to causality, if [Craft’s] history is reasonably
correct, one would have to assume that the work-related injury from 9-13-09 was a direct cause
of the herniated disc since [she] was asymptomatic prior to this injury.”
Dr. Dalton examined Craft again on May 5, 2011. He reported that her condition had
worsened due to objective texture changes, marked inflammatory changes, and a restricted range
of motion in the cervicothoracic region, with specific somatic dysfunction at C3 and T1. He
opined that Craft had work-related radiculopathy and somatic dysfunction and agreed with
Dr. Platt’s work-related restrictions. Dr. Dalton did not recommend further medical treatment in
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his specialty and opined that Craft had reached maximum medical improvement with the
exception of surgical intervention.
By letter dated December 6, 2011, Dr. Shamiyeh indicated that he had reviewed the
September 18, 2009 MRI and Dr. Smith’s records through August 9, 2010. Dr. Shamiyeh agreed
that Craft’s work accident “resulted in a mechanical change” to her neck “causing the disc
herniation at C7-T1.” Further, he opined that her disability was, at least in part, caused by this
disc herniation.
B. PROCEDURAL HISTORY OF THE CASE
On November 9, 2009, Craft entered into an award agreement with the employer before
she filed a formal claim for benefits with the commission.1 This agreement listed her injuries as
“left shoulder possible C8 nerve root compression,” and provided for the payment of temporary
total disability benefits. The agreement was filed with the commission for its approval on
November 13, 2009, and the commission issued an award order on December 4, 2009 accepting
the agreement and awarding lifetime medical benefits to Craft. Like the award agreement, the
award order listed Craft’s “left shoulder possible C8 nerve root compression” as the “body parts
injured during [her] workplace injury of September 13, 2009.” Although the award order
informed Craft of her right to appeal the commission’s decision within twenty days, neither she
nor the employer appealed the decision.
1
Craft filed her initial claim for benefits with the commission shortly after reaching this
agreement. Although Craft endorsed this claim on November 2, 2009 (the same day that she
endorsed the award agreement with the employer), the claim was not filed with the commission
until January 5, 2010. Thus, Craft’s initial claim for benefits was filed after she entered into the
award agreement with the employer and after the terms of that agreement were incorporated into
the commission’s December 4, 2009 award order. Furthermore, this claim did not address
Craft’s spinal injuries at issue in the present case. While the claim referred to an “attach[ed]
copy” to list the body parts that Craft injured in her work accident, the only document attached to
this claim displayed copies of Craft’s pay stubs from Advance Stores Co. and Lee County
Schools, for whom Craft was employed as a contract bus driver.
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On September 12, 2011, Craft filed a claim for benefits concerning her cervical and
thoracic spinal injuries. Specifically, Craft requested to amend the “nature of [her] injury to
include [the] cervical and thoracic spine” and requested temporary total disability benefits and
lifetime medical benefits. Commissioner Dudley, who sat by designation under Code
§ 65.2-704(A), accepted the parties’ request to have the matter decided on the record. Both
parties submitted written statements concerning the matter. The employer defended the claim by
arguing that the commission lacked jurisdiction to hear Craft’s claim. The employer argued that
the December 4, 2009 award order was a final order in the case and that Craft waived her right to
file a claim based on additional injuries not included in that order when she failed to timely
appeal the commission’s decision or otherwise except those injuries from the order. The
employer also argued that Craft failed to prove a change in her condition or that her spinal
injuries were caused by her work accident. Additionally, the employer argued that further
medical treatment of Craft’s spinal injuries was unnecessary.
On September 19, 2012, Commissioner Dudley determined that (1) the commission
possessed the jurisdictional authority to hear Craft’s claim regarding the injuries to her cervical
and thoracic spine; (2) Craft suffered injuries to her cervical and thoracic spine in the September
13, 2009 work accident; and (3) medical treatment was necessary for Craft’s cervical and
thoracic spinal injuries. In addressing the employer’s argument that the commission lacked
jurisdiction to hear Craft’s claim, Commissioner Dudley placed emphasis on the fact that Craft
entered into the initial agreement with the employer before she actually filed a claim with the
commission. Commissioner Dudley held that as Craft’s claim was initiated by agreement of the
parties before she filed a claim with the commission, “there was nothing for her to waive,
abandon, or merge with the November 9, 2009 agreement” or the December 4, 2009 award
order.
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The employer requested a review of Commissioner Dudley’s decision by the full
commission. On September 23, 2013, the commission unanimously affirmed the decision.2 Like
Commissioner Dudley, the full commission placed emphasis on the fact that Craft had not filed a
claim before she entered into the agreement. The commission reasoned that “[t]he parties did not
fail to mention or address a previously filed claim . . . [because] there was no claim.” The
commission held that Craft “did not waive her rights by signing the agreement and the doctrine
of res judicata does not preclude a claim to add additional injuries sustained as a result of a
compensable accident.” The commission addressed several policy considerations supporting this
conclusion, including the efficient administration of the Virginia Workers’ Compensation Act,
the encouragement of the voluntary settlement of claims, and the protection of injured employees
that may lack bargaining power at the time of the initial agreement due to their incapacity to
work and strained economic circumstances. The commission also held that Craft’s spinal
injuries resulted from her September 13, 2009 work accident and noted that the mechanism of
her injury was consistent with a cervical injury. The commission further held that the
employer’s argument concerning the necessity of additional medical treatment of Craft’s spinal
injuries was without merit. The employer appealed the commission’s decision to this Court.
II. ANALYSIS
Upon reviewing the record and the authority addressing the issues presented on appeal,
we find that the employer’s assignments of error are without merit. Craft’s claim for benefits
resulting from her cervical and thoracic spinal injuries was not barred by the principles of res
judicata or the statute of limitations. Further, the commission’s decision that Craft’s spinal
injuries were caused by her September 13, 2009 work accident was supported by credible
2
Commissioner Dudley retired before the full commission reviewed this matter.
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medical evidence. Additionally, credible evidence supported the commission’s decision that
Craft’s spinal injuries required further medical treatment.
A. CRAFT’S CLAIM CONCERNING HER SPINAL INJURIES
WAS NOT BARRED BY THE PRINCIPLES OF RES JUDICATA
On appeal, the employer contends that the December 4, 2009 award order was a final
order barring Craft’s claim for further benefits. The employer argues that Craft waived her right
to file other claims based on injuries not included in the award order when she failed to timely
appeal the commission’s decision or otherwise except any additional injuries from the order.
The employer claims that the principles of res judicata prohibit the commission from considering
Craft’s claim for her spinal injuries.
“The determination of res judicata is a question of law and is reviewed de novo.” Pruden
v. Plasser Am. Corp., 45 Va. App. 566, 573, 612 S.E.2d 738, 742 (2005). While we review
questions of law de novo, we construe the Workers’ Compensation Act liberally for the benefit
of employees to effectuate its remedial purpose of making injured workers whole. See Fairfax
Cnty. Sch. Bd. v. Humphrey, 41 Va. App. 147, 154-55, 583 S.E.2d 65, 68 (2003). We also “give
great weight to the commission’s construction of the Act.” Id. at 155, 583 S.E.2d at 68-69
(citation omitted).
“[R]es judicata is a judicially created doctrine resting upon public policy considerations
which favor certainty in the establishment of legal relations, demand an end to litigation, and
seek to prevent harassment of parties.” K&L Trucking Co. v. Thurber, 1 Va. App. 213, 219, 337
S.E.2d 299, 302 (1985).
[T]he principles of res judicata can be comprised of two distinct
concepts: “issue preclusion” and “claim preclusion.” See Brock v.
Voith Siemens Hydro Power Generation, 59 Va. App. 39, 45, 716
S.E.2d 485, 487 (2011). “Issue preclusion bars ‘successive
litigation of an issue of fact or law actually litigated and resolved
in a valid court determination essential to the prior judgment,’ even
if the issue recurs in the context of a different claim.” Id. (quoting
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 New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)). In
contrast, claim preclusion “‘foreclos[es] litigation of a matter that
never has been litigated, because of a determination that it should
have been advanced in an earlier suit.’” Nottingham v. Weld, 237
Va. 416, 419 n.2, 377 S.E.2d 621, 622 n.2 (1989) (quoting Migra
v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 77 n.1
(1984)).
Shy, 61 Va. App. at 241, 734 S.E.2d at 689. “[C]laim preclusion treats unasserted claims as
being subsumed into the disposition of related, previously adjudicated, claims arising out of the
same cause of action.” Brock, 59 Va. App. at 45, 716 S.E.2d at 488 (citing Restatement
(Second) of Judgments §§ 18, 19 (1982)). Thus, the “‘effect of a final decree is not only to
conclude the parties as to every question actually raised and decided, but as to every claim which
properly belonged to the subject of litigation and which the parties, by exercise of reasonable
diligence, might have raised at the time.’” Id. at 46, 716 S.E.2d at 488 (quoting Smith v.
Holland, 124 Va. 663, 666, 98 S.E. 676, 677 (1919)).3
The principles of res judicata apply to workers’ compensation cases. Id. at 47, 716
S.E.2d at 488. “‘[T]he relationship of the [c]omission to an award is that of a court to a
judgment . . . .’” Id. (quoting Thurber, 1 Va. App. at 219, 337 S.E.2d at 302). Thus, “a final
award [from the commission] ‘bars relitigation of the same cause of action, or any part thereof
which could have been litigated between the same parties and their privies.’” Id. (emphasis in
original). Likewise, “[a]n order by the commission awarding benefits to a claimant by
agreement of the parties is a final determination of the matters which were actually, or might
have been, litigated in that suit.” Shy, 61 Va. App. at 240, 734 S.E.2d at 689 (emphasis added).
This Court addressed the doctrine of res judicata in the context of workers’ compensation
cases in Brock and Shy. In Brock, an employee alleged several injuries in his initial claim but
failed to raise all of those injuries at his evidentiary hearing before the commission. See Brock,
3
Claim preclusion has been referenced by this Court as a “could-have-litigated-should-
have-litigated principle.” See Brock, 59 Va. App. at 46, 716 S.E.2d at 488.
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59 Va. App. at 42, 716 S.E.2d at 486. The commission awarded the employee benefits for the
injuries he actually raised at the hearing and dismissed his claim. See id. Four months later, the
employee filed a new claim requesting benefits for the injuries he failed to previously address
before the commission. See id. at 43, 716 S.E.2d at 486. The commission applied the doctrine
of res judicata to bar the employee’s new claim. See id. at 44, 716 S.E.2d at 487. This Court
affirmed the commission’s decision on appeal, and noted that the deputy commissioner presiding
over the initial evidentiary hearing specifically warned the employee of the necessity of
addressing all of the issues raised by his claim. See id. at 49, 716 S.E.2d at 489-90. This Court
held that “settled principles of res judicata . . . [barred the employee] from litigating matters he
neglected to raise at his earlier evidentiary hearing.” Id. at 49, 716 S.E.2d at 490. See also
Thurber, 1 Va. App. at 218, 337 S.E.2d at 301 (res judicata prevented employee from presenting
evidence that he procured selective employment from which he was discharged when he had
“ample opportunity” to present this evidence at an earlier hearing).
In Shy, an employee filed a claim for benefits after an unsuccessful attempt to return to
work following a work-related upper back injury. See Shy, 61 Va. App. at 234, 734 S.E.2d at
685-86. The parties entered into an award agreement concerning the employee’s injury prior to
her hearing before the commission. See id. at 234, 734 S.E.2d at 686. The commission
approved the agreement and entered an award order reflecting its terms. See id. Several months
later, the employer filed an application for a hearing before the commission requesting a
termination of the employee’s award on the ground that her attempted return to work constituted
a change in her condition. See id. The commission held that the employer’s request for review
was barred by the award order under the principles of res judicata. See id. at 237-38, 734 S.E.2d
at 687. The commission found that the employer had abandoned its claim to challenge the award
based on the employee’s attempted return to work because it was aware of this unsuccessful
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work attempt prior to the execution of the award agreement. See id. This Court affirmed the
commission’s decision, finding that the award order was a final judgment that barred further
review of the employee’s award under the claim preclusion component of res judicata. See id. at
242-43, 734 S.E.2d at 689 (citing Brock, 59 Va. App. at 46, 716 S.E.2d at 488).
The present case is distinguishable from Brock and Shy due to its procedural history. In
contrast to the employee in Shy, Craft had not yet filed a claim with the commission when she
entered into the award agreement with the employer. Thus, there was no “contested matter
before the commission” when the parties entered into the award agreement. See id. at 239, 734
S.E.2d at 688. Moreover, Craft had not presented her case to the commission for adjudication
before it entered the award order. Unlike the employee in Brock, Craft had not yet put all of her
injuries at issue before the commission or had the opportunity to advance her claims by
presenting evidence of her injuries at an evidentiary hearing. See Brock, 59 Va. App. at 42-43,
716 S.E.2d at 486. As Craft had not filed a claim with the commission at the time of the award
agreement and the subsequent entry of the award order, there were no claims pending with the
commission that could later be barred by the principles of res judicata. Craft had not yet put her
spinal injuries at issue before the commission, and therefore she cannot be deemed to have
abandoned or otherwise waived those claims.
As noted by the commission, applying the principles of res judicata to bar Craft’s claim
would thwart several important public policy considerations relating to the Virginia Workers’
Compensation Act. First, the Act “encourages the voluntary settlement of claims arising from
compensable injuries.” Watts v. P&J Hauling, Inc., 41 Va. App. 278, 283, 584 S.E.2d 457, 460
(2003); see also Code § 65.2-701(C) (the Act encourages settlements between the parties).
Interpreting the principles of res judicata in the manner encouraged by the employer would
undermine this goal. If res judicata applied to voluntary agreements entered before employees
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actually filed claims, then employees would have to ensure that those agreements covered all of
the potential injuries resulting from their work-related accidents. Voluntary agreements would
essentially act as blanket releases concerning claims for unlisted injuries.4 Employees would be
barred by their pre-claim agreements from filing additional claims if other injuries were
discovered at a later date. The increased diligence required by such an application of res judicata
coupled with uncertain medical diagnoses and potentially latent injuries would discourage the
voluntary settlement of claims in many cases. In turn, the efficient administration of the Act
would be jeopardized as more claims would be fully litigated, even when the parties of the case
were in agreement concerning some injuries involved in the claim.
Furthermore, the employer’s suggested application of the principles of res judicata could
lead to inequitable settlements that only partially compensate injured workers for their injuries.
Injured employees lacking economic bargaining power due to their inability to work and earn
wages could be forced by their circumstances to agree to awards that only provide compensation
for some of their work-related injuries. Without agreeing to an award, these employees would
have to fully litigate their claims, and they could be denied medical care and lost wages
throughout the course of this litigation. Under such circumstances, employees would be more
likely to abandon compensation for some injuries in favor of partial awards yielding immediate
benefits that may not be in their long-term best interest.5 These employees would be barred from
4
Blanket releases are not favored by the commission and are reviewed with a high degree
of scrutiny. See Chism v. Norfolk (City of) Utilities, No. 217-46-42 (Va. Workers’ Comp.
Comm’n March 3, 2005).
5
The Supreme Court of Virginia has expressly addressed such a scenario in John Driggs
Co. v. Somers, 228 Va. 729, 734-35, 324 S.E.2d 694, 697 (1985). Although we describe this
hypothetical scenario to illustrate a potential inequitable outcome resulting from the employer’s
interpretation of the principles of res judicata, we note that the record does not contain any
evidence of similar wrong-doing by the employer in this case.
We also note that Code § 65.2-701 requires the commission to approve award agreements
only when they are in the best interests of the employee. See Code § 65.2-701(A). If res
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bringing claims for additional benefits based on their uncompensated injuries under the
application of res judicata advocated by the employer. The principles of res judicata should not
be applied in a way that facilitates such inequitable results.
We hold that the principles of res judicata do not bar Craft’s claim for benefits based on
her spinal injuries under the circumstances of this case. Code § 65.2-601 requires a claim for
benefits to be filed with the commission within two years of an employee’s work-related
accident. See Code § 65.2-601. Since Craft filed her claim for benefits concerning her spinal
injuries within two years of her accident, she timely filed her claim within the period mandated
by the relevant statute of limitations. Accordingly, the claim was properly before the
commission and it had jurisdiction to award Craft the requested benefits.
B. CRAFT’S INJURIES WERE CAUSED BY HER
SEPTEMBER 13, 2009 WORK ACCIDENT
The employer argues that “the commission erred in finding that [Craft] sustained an
injury to her thoracic and cervical spine in a work accident.” The employer contends that Craft
did not establish that the September 13, 2009 accident caused her spinal injuries.6 We disagree.
Credible medical evidence in the record supports the commission’s decision that Craft’s spinal
injuries were caused by her work accident.
judicata bars employees from bringing claims for additional injuries not included in initial award
agreements, the commission will have to review awards in cases where multiple injuries are
likely with increased scrutiny to ensure that injured employees have not waived future claims
and that the award is actually in their best interests. This need for increased scrutiny will place
further administrative demands on the commission.
6
Initially, the employer frames its argument in the context of a review of an award based
on a change in condition pursuant to Code § 65.2-708. The employer argues that Craft failed to
establish a change in her physical condition that would justify a review of her award because her
spinal injuries existed when the commission entered the initial award order. Craft’s claim
regarding her spinal injuries, however, was filed as an initial claim pursuant to Code § 65.2-601
rather than as a change in condition. Thus, Craft was not required to prove a change in her
condition since the entry of the award order and the employer’s reference to review based on a
change in condition outlined in Code § 65.2-708 is misdirected.
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“Decisions of the commission as to questions of fact, if supported by credible evidence,
are conclusive and binding on this Court.” Shy, 61 Va. App. at 238, 734 S.E.2d at 688 (quoting
Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). Further,
as previously stated, this Court views the evidence in the light most favorable to Craft as the
prevailing party before the commission. See R.G. Moore Bldg. Corp., 10 Va. App. at 212, 390
S.E.2d at 788. “‘If there is evidence, or reasonable inferences can be drawn from the evidence,
to support the commission’s findings, they will not be disturbed on review, even though there is
evidence in the record to support a contrary finding.’” Amelia Sand Co. v. Ellyson, 43 Va. App.
406, 408, 598 S.E.2d 750, 751 (2004) (quoting Morris v. Badger Powhatan/Figgie Int’l, Inc., 3
Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)). “The determination of causation is a factual
finding that will be upheld on appeal if credible evidence supports the finding.” Imperial Trash
Serv. v. Dotson, 18 Va. App. 600, 603, 445 S.E.2d 716, 718 (1994).
In the present case, the evidence established that Craft was injured at work on September
13, 2009 when she removed a set of rotors from a shelf above her head.7 Craft visited her family
practitioner the next day complaining of neck and shoulder pain. On September 18, 2009, Craft
underwent an MRI of her cervical spine that revealed a new left lateral recess disc extrusion at
C7-T1 and left C8 nerve root compression. Although Craft had a history of problems with her
cervical spine that included a prior cervical fusion, these issues had completely resolved
according to the medical records. Craft was asymptomatic in relation to her prior cervical
problems prior to her injury on September 13, 2009.
Four of Craft’s physicians linked her neck pain and injuries to her September 13, 2009
work accident. Dr. Smith reported Craft’s development of neck, left trapezial, and scapular pain
and hand numbness following the accident. He also noted a decreased range of motion in Craft’s
7
The commission noted that this “mechanism of injury is consistent with a cervical
injury.”
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cervical spine and diagnosed her with cervical herniated nucleus pulposus without myelopathy,
cervical spondylosis without myelopathy, cervical degenerative disc disease, cervical
radiculopathy, and neck pain. Dr. Platt diagnosed an acute work-related neck injury and linked
Craft’s C7-T1 disc extrusion to the September 13, 2009 work accident. Dr. Wiles diagnosed a
C7-T1 herniated disc on the left and opined that “[w]ith respect to causality, if [Craft’s] history is
reasonably correct, one would have to assume that the work-related injury from 9-13-09 was a
direct cause of the herniated disc since [she] was asymptomatic prior to this injury.” (Emphasis
added). Likewise, Dr. Shamiyeh opined that Craft’s work accident “resulted in a mechanical
change” to her neck “causing the disc herniation at C7-T1” and that her disability was, at least in
part, caused by this disc herniation.
On appeal, the employer places emphasis on Dr. Dalton’s opinions. Dr. Dalton opined
that the only correlation between the work accident and the cervical injuries was the MRI
revealing the new disc extrusion. He stated that the MRI did not establish that the new disc
extrusion was caused by the accident and that Craft’s prior medical history could be impacting
her cervical problems.
“[A] question raised by ‘conflicting expert medical opinions’ is ‘one of fact’ binding
upon this Court on appeal.” Southwest Va. Tire, Inc. v. Bryant, 31 Va. App. 655, 661-62, 525
S.E.2d 563, 566 (2000) (citation omitted). When medical expert opinions conflict, the
commission must determine the probative weight to be accorded such evidence. See Pilot
Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). If the
commission’s resolution of conflicting expert opinions is based on credible evidence, then its
decision is binding on this Court. See id. Here, the commission discounted Dr. Dalton’s
opinions and assigned greater weight to the opinions of the other four physicians linking Craft’s
spinal injuries to her work accident. The mechanism of Craft’s accident, the timing of her
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symptoms and the nature of her injuries, the MRI revealing the new disc extrusion, and the fact
that Craft’s prior cervical problems were asymptomatic prior to her injury support the
commission’s conclusion.
The commission’s decision that Craft’s spinal injuries were caused by her September 13,
2009 work accident is supported by credible evidence in the record. Four physicians linked
Craft’s cervical and thoracic spinal injuries to the accident, and radiographic evidence and the
circumstances of the case support their conclusions. Thus, the commission did not err in
reaching this decision.
C. CRAFT’S SPINAL INJURIES REQUIRE FURTHER MEDICAL TREATMENT
The employer also argues that the commission erred by finding that the medical treatment
of Craft’s spinal injuries was necessary. The employer contends that Craft failed to establish the
necessity of any further treatment pertaining to her spinal injuries. The employer does not focus
this claim to any specific medical treatment, but rather argues that Craft has reached maximum
medical improvement and requires no further treatment in general.
Whether disputed medical treatment is compensable . . .
presents a mixed question of law and fact, which this Court
reviews de novo. “The services which an employer has to furnish
under the Work[ers’] Compensation Act are necessary services
incident to the treatment of an injury sustained in a compensable
accident.” Ins. Mgmt. Corp. of Tidewater/Baldwin Bros. & Taylor
v. Daniels, 222 Va. 434, 439, 281 S.E.2d 847, 849 (1981). Subject
to the commission’s review, the employer is responsible for
medical attention if 1) a causal relationship exists between the
workplace accident and the treatment, and 2) the attending
physician deems it necessary. The claimant, however, bears the
burden of proving by a preponderance of the evidence that
disputed treatment was medically necessary.
Haftsavar v. All Am. Carpet and Rugs, Inc., 59 Va. App. 593, 599, 721 S.E.2d 804, 807 (2012)
(citations omitted).
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As previously discussed, a causal relationship exists between Craft’s September 13, 2009
work accident and her cervical and thoracic spinal injuries. Therefore, the employer is
responsible for necessary medical treatment pertaining to those injuries. The employer,
however, essentially argues that Craft’s injuries will require no further treatment. The employer
bases this position on a report from Dr. Dalton. In that report, Dr. Dalton did not recommend
further medical treatment in his specialty and opined that Craft had reached maximum medical
improvement with the exception of surgical intervention.
The employer’s reliance on Dr. Dalton’s report is flawed for several reasons. While
Dr. Dalton opined that Craft did not require further medical treatment, his opinion only
addressed medical treatment within his specialty, osteopathy. While Craft may not require
further osteopathic manipulative treatment, other medical treatment could be necessary in the
future. Additionally, Dr. Dalton opined that Craft had reached maximum medical improvement
with the exception of surgical intervention. At the time of Dr. Dalton’s report, Craft still
experienced pain in her cervical region and she had discussed the possibility of surgery with her
other physicians. Thus, surgical intervention could become necessary in the future. Further,
Dr. Dalton diagnosed Craft with work-related radiculopathy and somatic dysfunction and agreed
with Dr. Platt’s work-related restrictions. These diagnoses and recommendations imply that
Craft could require further medical treatment in the future.
Although Craft’s need for future medical treatment requires speculation, it was
reasonable for the commission to conclude that she could require additional medical treatment
for her spinal injuries. Craft still experienced pain in her cervical region and had discussed
surgery with her physicians. Further, Dr. Dalton’s report is limited in its scope to treatment
within his specialty. Accordingly, we conclude that the commission did not err in reaching its
decision concerning the necessity of further medical treatment.
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III. CONCLUSION
In summary, we hold that the principles of res judicata do not bar Craft’s claim for
benefits concerning her cervical and thoracic spinal injuries. As that claim was timely filed with
the commission, it had jurisdiction to award her benefits based on that claim. Additionally, we
hold that credible evidence supported the commission’s decision that Craft’s September 13, 2009
work accident caused her spinal injuries. Further, we conclude that the commission did not err
by finding that Craft’s spinal injuries require additional treatment. For these reasons, we affirm
the commission’s decision.
Affirmed.
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