Virginia Department of Health v. Susan Ann Elmore

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
VIRGINIA DEPARTMENT OF HEALTH/
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION*
v. Record No. 2096-02-2 PER CURIAM
DECEMBER 31, 2002
SUSAN ANN ELMORE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jerry W. Kilgore, Attorney General; Judith
Williams Jagdmann, Deputy Attorney General;
Edward M. Macon, Senior Assistant Attorney
General; Scott John Fitzgerald, Assistant
Attorney General, on brief), for appellant.
(B. Mayes Marks, Jr.; Marks and Williams,
P.C., on brief), for appellee.
Virginia Department of Health/Commonwealth of Virginia
(employer) contends the Workers' Compensation Commission erred
in finding that Susan Ann Elmore proved that (1) her hyperacusis
and tinnitus were causally related to her compensable April 13,
1999 injury by accident; and (2) the two-year statute of
limitations contained in Code § 65.2-601 did not bar her claim.
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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Causation
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). "The
actual determination of causation 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).
In ruling that claimant proved that her hyperacusis and
tinnitus were causally related to her compensable April 13, 1999
injury by accident, the commission found as follows:
[W]e find nothing in the previous medical
reports to substantiate that the claimant
suffered from this condition prior to that
date. While [Lorraine Klein] Gardner's
audiology report indicated that the claimant
had a several year history of increase in
problems, this is not determinative in the
absence of other medical documentation. In
addition, we note that this evaluation took
place in May and June of 2000, more than a
year after the accident. Therefore, such a
history does not negate the claimant's
contention that the condition began with, or
certainly worsened after, the April 13,
1999, accident. Drs. [Nathan] Zasler,
[Richard L.] Prass, and [Howard N.] Gutnick
have made a causal connection between the
claimant's tinnitus, hyperacusis problems,
and the original accident. The record
offers no evidence from any healthcare
provider who has examined the claimant to
indicate otherwise.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
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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. The
commission did so and discounted Gardner's notation that
claimant had a several year history of increasing problems, and
accepted the uncontradicted opinions of Drs. Zasler, Prass, and
Gutnick. Their opinions constitute credible evidence to support
the commission's decision. Accordingly, we will not disturb
that decision on appeal.
II. Statute of Limitations
To perfect a claim for benefits under
the [Virginia Workers' Compensation Act], an
employee must file notice of the claim with
the commission within two years of the
accident. This notice must include all
specific injuries an employee contends are
compensable. "Timely filing of an original
claim is jurisdictional, and a claimant
bears the burden of proving his claim is
timely filed."
Johnson v. Paul Johnson Plastering and Nat'l Sur. Corp., 37
Va. App. 716, 723, 561 S.E.2d 40, 43 (2002) (citations omitted).
"The purpose of filing with the commission is to provide all
parties with notice of the potential issues in a case." Id. at
723, 561 S.E.2d at 44.
The intent and purpose of Code
§ 65.2-601 is to require notice to the
employer of its potential liability for an
injury sustained by an employee. Formal
pleadings are not required. So long as the
claimant's notice advises the commission of
necessary elements of this claim, "'it
activates the right of the employee to
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compensation and . . . invokes the
jurisdiction of the Industrial Commission.'"
Metro Machine Corp. v. Sowers, 33 Va. App. 197, 204, 532 S.E.2d
341, 345 (2000) (citations omitted).
Claimant's initial Claim for Benefits filed with the
commission on July 9, 1999 listed the following injuries:
"twitches (muscle); muscle spasms; head & neck pain; hip pain;
speech difficulties." That claim also listed "speech apraxia;
occipital neuritis ongoing; fibromyalgia" as the "nature or name
of disease."
On March 9, 2001, claimant and employer executed an order
setting forth their agreements. That order indicated that the
parties agreed that "claimant suffered multiple injuries" in the
April 13, 1999 accident. Deputy Commissioner Mercer entered the
order on March 9, 2001.
The medical records established that as early as May 2000,
Gardner, an audiologist, to whom claimant had been referred by
Dr. Zasler, claimant's treating physician, indicated that she
was seeing claimant for an evaluation "to investigate a
diagnosis of hyperacusis." A copy of that report was sent to
Managed Care Innovations, who was working with claimant on
behalf of employer.
In a June 29, 2000 medical report from Dr. Zasler to Paula
Day, the case manager assigned to claimant's claim by Managed
Care Innovations, Dr. Zasler indicated that "it is my
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opinion . . . that Ms. Elmore's audiologic complaints are,
indeed, accident-related and therefore, any care germane to this
complaint should be covered by worker's compensation."
Upon Gardner's suggestion, claimant was referred to
Drs. Prass and Gutnick of Atlantic Coast Ear Specialists for a
full evaluation for hyperacusis. Drs. Zasler, Prass, and
Gutnick continued to communicate with Day and/or other
representatives of Managed Care Innovations. In a September 22,
2000 medical report, Dr. Prass indicated that the claimant was
suffering from "bilateral hyperacusis and tinnitus, the onset
which is temporally related to trauma of April 13, 1999." That
report was sent to Day at Managed Care Innovations.
In a November 9, 2000 letter from Dr. Gutnick to Kristie
McClaren of Managed Care Innovations, Dr. Gutnick enclosed
reports regarding claimant's evaluation for hyperacusis and
tinnitus. Dr. Gutnick recommended that claimant be fitted with
ear devices to treat her hyperacusis and tinnitus, and he sought
authorization from Managed Care Innovations to obtain these
specialized devices.
Credible evidence in this record demonstrates that
employer, through its representatives, had notice and actual
knowledge of claimant's potential claim for hyperacusis and
tinnitus and their causal relationship to her compensable work
injury, well within the two-year period following her April 13,
1999 injury by accident. Employer agreed within that two-year
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period that claimant sustained "multiple injuries" as a result
of the compensable April 13, 1999 work-related accident.
Employer chose not to specify each and every injury in the March
9, 2001 agreed order. Thus, because employer agreed that
claimant sustained multiple injuries within the two-year period
following her compensable injury by accident and employer had
knowledge and notice of claimant's potential claim for
work-related hyperacusis and tinnitus within that period, the
commission did not err in invoking its jurisdiction and in
considering claimant's claim for those conditions.
For these reasons, we affirm the commission's decision.
Affirmed.
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