United Winner Metals, Inc. v. Tanya Hardee

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Senior Judge Cole
UNITED WINNER METALS, INC. AND
TRANSPORTATION INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1195-00-2 PER CURIAM
SEPTEMBER 26, 2000
TANYA MARIE HARDEE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jennifer G. Marwitz; Law Offices of Roya
Palmer Ewing, on brief), for appellants.
No brief for appellee.
United Winner Metals, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Tanya Marie Hardee
(claimant) proved that (1) she was totally disabled from any
gainful employment from January 3, 1996 through February 5,
1996; and (2) her medical treatment beginning April 16, 1997 was
causally related to her compensable September 26, 1995 injury by
accident. 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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"Factual findings made by the commission will be upheld on
appeal if supported by credible evidence." James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
Disability
The medical records established that after claimant's
September 26, 1995 injury by accident, she started treatment
with Dr. Edward D. Habeeb, an orthopedist, on October 9, 1995.
Dr. Habeeb placed claimant on light-duty restrictions until
January 2, 1996, when he discharged her.
Claimant testified that she attempted to return to work on
January 2, 1996, but had to leave work due to muscle spasms in
her back. She stated that she had not worked since that date.
On January 11, 1996, claimant returned to Dr. Habeeb and
reported that "she . . . had a complete relapse of all of her
symptoms in her back. She relates that she was out cutting with
a welding torch when all of the symptoms returned. There was no
actual trauma to cause it." Based upon Dr. Habeeb's examination
and tests, he did not have any treatment to offer claimant other
than her own exercise program and medication as necessary. Dr.
Habeeb agreed that claimant should seek a second opinion. In
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his Attending Physician's Report, Dr. Habeeb indicated that
claimant was disabled as of January 11, 1996 and it was
"unknown" when she would be able to return to regular work.
On February 5, 1996, Dr. Curtis V. Spear, Jr. examined
claimant. Dr. Spear recorded a history of claimant's initial
injury and the flare-up of pain on January 3, 1996. Dr. Spear
ordered physical therapy and released claimant to light-duty
work with no lifting of more than twenty pounds.
Based upon this record, the commission found as follows:
[T]he Deputy Commissioner properly awarded
temporary total disability benefits
beginning January 3 through February 5,
1996. The claimant testified credibly that
she had to leave work on January 3, 1996,
because the work caused a severe muscle
spasm in her back. Dr. Habeeb's Attending
Physician's Report indicates that the
claimant was disabled as of the date he
examined her, January 11, 1996. Dr. Spear
released the claimant to light-duty work on
February 5, 1996. This evidence establishes
disability for this short period.
The medical records of Drs. Habeeb and Spear, coupled with
claimant's testimony, constitute credible evidence to support
the commission's finding. Based upon this evidence, the
commission could reasonably infer that claimant was totally
disabled from gainful employment from January 3, 1996 through
February 5, 1996. Accordingly, we will not disturb the
commission's finding on appeal.
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Causation
"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).
On April 17, 1997, claimant sought treatment at the
Portsmouth Naval Hospital emergency room. The hospital's
consultation sheet reflected a history of "chronic mid to upper
back pain from trauma (fell out of truck 6' off ground) 2 yrs.
ago; recurrent sharp pain - not resolved." The physician's
assistant diagnosed "recurrent mid-upper back pain," and
referred claimant to Dr. Ali-Reza Jamali, an orthopedist.
On May 8, 1997, Dr. Jamali examined claimant. At that
time, claimant completed an information sheet, upon which she
recorded three dates of injury: September 26, 1995, January 3,
1996, and April 16, 1997. Dr. Jamali recorded a history of a
fall on September 26, 1995 and severe pain of a three-week
duration since claimant had pulled her back again. Dr. Jamali
diagnosed a severe thoracic sprain and recommended bed rest,
ice, and an MRI. The MRI was normal. Thereafter, Dr. Jamali
recommended that claimant continue with physical therapy.
Dr. Jamali referred claimant to Dr. Lisa B. Barr, a
physiatrist. Dr. Barr examined claimant on June 26, 1997 and
recorded a history consistent with claimant's September 26, 1995
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injury by accident, along with an acute onset of pain in April
1997. Dr. Barr opined that claimant's "persistent pain and
recent flare up is, in all likelihood, related to some recurrent
mechanical dysfunction."
Based upon these medical records, the commission ruled that
claimant's medical treatment after April 1997 was causally
related to her September 26, 1995 injury by accident. The
medical records of Portsmouth Naval Hospital and Drs. Jamali and
Barr constitute credible evidence from which the commission
could reasonably infer that claimant's treatment after April 16,
1997 was causally related to her September 26, 1995 injury by
accident. "Where reasonable inferences may be drawn from the
evidence in support of the commission's factual findings, they
will not be disturbed by this Court on appeal." Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695,
698 (1988).
For these reasons, we affirm the commission's decision.
Affirmed.
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