Allen & Rocks, Inc. v. Briggs

• Decision Date: 22 December 1998
• Docket Number: Record No. 0768-98-3.
• Citation: 508 S.E.2d 335,28 Va. App. 662
• Court: Virginia Court of Appeals
• Parties: ALLEN & ROCKS, INC. and North River Insurance Company v. Perry Lee BRIGGS.

508 S.E.2d 335

28 Va. App. 662

ALLEN & ROCKS, INC. and North River Insurance Company v. Perry Lee BRIGGS.

Record No. 0768-98-3.

Court of Appeals of Virginia, Salem.

December 22, 1998.

S. Vernon Priddy, III (Collin J. Hite; Sands, Anderson, Marks & Miller, on brief), Richmond, for appellants.

Gary Lumsden, Roanoke (Rhonda L. Overstreet, Forest; Lumsden, Overstreet & Hansen, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and ELDER, JJ.

FITZPATRICK, Chief Judge.

Allen & Rocks, Inc. and its insurer (collectively referred to as "employer") contend the Workers' Compensation Commission ("commission") erred (1) in finding that Perry Lee Briggs' ("claimant") injury to his left knee was a compensable consequence of his work-related back injury; (2) in refusing to remove Dr. Murray Joiner as claimant's treating physician; and (3) in awarding attorney's fees. For the following reasons, we affirm in part and reverse in part.

I. BACKGROUND

On April 24, 1980, claimant, a porter, suffered a compensable injury to his lower back when he slipped on stairs in the course of his employment. His claim was accepted by employer and several awards for compensation benefits and lifetime medical benefits have been entered.

The evidence established that claimant came under the care of Dr. Murray Joiner, a physiatrist, on November 9, 1994. Following an initial evaluation of claimant, Dr. Joiner noted a history of two lumbar laminectomies, a spinal fusion, and a right meniscus repair surgery. On that occasion, claimant reported "bilateral low back pain which is constant and sharp in quality," with radiation into his right lower extremity. Dr. Joiner initially diagnosed claimant's condition as "failed back syndrome," and he recommended injections and physical therapy.

Over the next year, claimant followed this treatment plan of physical therapy and injections. On February 27, 1996, claimant returned to Dr. Joiner with severe pain in his lower left leg. Dr. Joiner opined that the left knee pain was "[secondary] to chronic gait deviations," caused by claimant's failed back syndrome. Claimant was referred for additional physical therapy to treat his back and left knee pain. On at least seven occasions in 1996, Dr. Joiner assessed claimant's condition as left knee pain secondary to chronic back pain. In 1997, Dr. Sam Samarsinghe, a pain management specialist, treated claimant for "increased back discomfort with bilateral leg radiation."

When employer's insurance carrier initially denied medical coverage for claimant's knee condition, Dr. Joiner wrote the company several letters. On March 5, 1996, Dr. Joiner requested Jean Ellison, a claims examiner, to reconsider the denial of medical treatment. Dr. Joiner repeated his diagnosis that claimant suffered from knee pain secondary to chronic gait deviations with failed back syndrome. He concluded, "Mr. Briggs would not suffer his current knee pathology if he did not have the gait deviations which are directly related to his failed back syndrome." A similar letter was written on January 6, 1997, requesting that the insurer approve medical expenses for a knee brace and physical therapy for claimant's back injury and bilateral knee problems. The insurer continued to deny the claim asserting that the medical care did not "appear" to relate to the original workers' compensation claim.

At employer's request, claimant underwent an independent medical evaluation by Dr. Daniel L. Hodges on November 11, 1996.¹ In his report, Dr. Hodges reviewed claimant's medical history and noted his complaints of pain radiating into both lower extremities. Dr. Hodges concluded that claimant suffered from "failed back syndrome" and a "[history] of right knee surgery with secondary mechanical pain due to his antalgic gait from his low back."

Claimant filed a claim seeking to hold employer responsible for medical treatment to his left knee as a compensable consequence of his back injury. Thereafter, employer filed an application requesting a change in treating physicians. On March 28, 1997, claimant filed a supplemental claim requesting attorney's fees because employer denied necessary medical treatment without reasonable grounds.

The parties agreed to submit the issues for a hearing on the record. The commission found that claimant's injury to his left knee was a compensable consequence of his work-related back injury. The commission denied employer's application to remove Dr. Joiner as claimant's treating physician and awarded claimant his requested attorney's fees.

II. COMPENSABLE CONSEQUENCES AND CUMULATIVE TRAUMA

Employer argues that the commission erred in awarding benefits to claimant because his left knee condition was a result of cumulative trauma injury not covered by the Act. According to employer, claimant's knee pain constituted a new cumulative trauma injury because it was caused by an ongoing disturbance in his gait. Employer contends that as a matter of law the doctrine of compensable consequences does not apply when there is a gradually incurred injury. This argument presents an issue of first impression for this Court.

The full commission found that claimant's knee pain was caused by his gait deviations, which was a direct result of the compensable work injury to his back. Accordingly, the commission held it was a "compensable consequence" of the original injury. The doctrine of compensable consequences arose from a line of Supreme Court cases discussing chain of causation principles. In Justice v. Panther Coal Co., 173 Va. 1, 2 S.E.2d 333 (1939), the claimant fractured his pelvis in the course of his employment. While in the hospital for treatment of the compensable injury, the claimant died from acute lobar pneumonia. See id. at 3, 2 S.E.2d at 334. Reversing the commission's denial of benefits, the Court wrote:

Decedent was hale and hearty for several years immediately preceding the accident. He was never sick during this period. After the accident, exposure and operation, he was confined to the hospital where we presume all proper precautions were taken to prevent the onslaught of pneumonia from any source. Notwithstanding these precautions, pneumonia developed in an otherwise apparently vigorous and healthy man within five days from the date of the accident and within three days from the date ether was administered, resulting in death some five days later. In the absence of positive affirmative evidence, tending to establish a break in the chain of causation, the inevitable conclusion from the evidence is that the death of the decedent resulted "naturally and unavoidably from the accident."

Id. at 7, 2 S.E.2d at 336 (emphasis added).

In Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977), the Court adopted the term "compensable consequences" and provided the following rule: "When a primary injury under the Workmen's Compensation Act is shown to have arisen out of the course of employment, every natural consequence that flows from the injury is compensable if it is a direct and natural result of a primary injury.... This doctrine extends the canopy of the Workmen's Compensation Act to the resulting injury. This is so because the second injury is treated as if it occurred in the course of and arising out of the employee's employment." Id. at 214, 237 S.E.2d at 99-100. See also Immer & Co. v. Brosnahan, 207 Va. 720, 727-28, 152 S.E.2d 254, 258-59 (1967) (applying chain of causation rule and awarding compensation benefits for the claimant's injuries sustained in an automobile accident while en route to a medical provider for treatment of original work-related injury).

More recently, we addressed the doctrine of compensable consequences in Amoco Foam Products Co. v. Johnson, 26 Va.App. 267, 494 S.E.2d 169 (1997).

In Virginia, the doctrine of compensable consequences "is well established and has been in existence for many years." Williams Indus., Inc. v. Wagoner, 24 Va.App. 181, 186, 480 S.E.2d 788, 790 (1997).

This doctrine, also known as the chain of causation rule, provides that "where the chain of causation from the original industrial injury to the condition for which compensation is sought is direct, and not interrupted by any intervening cause attributable to the employee's own intentional conduct, then the subsequent condition should be compensable."

Food Distribs. v. Estate of Ball, 24 Va. App. 692, 697, 485 S.E.2d 155, 158 (1997) (quoting Leadbetter, Inc. v. Penkalski, 21 Va.App. 427, 432, 464 S.E.2d 554, 556 (1995)) (emphasis added).

[W]hen the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of direct and natural results, and the claimant's own conduct as an independent intervening cause.

Williams Indus., Inc., 24 Va.App. at 186, 480 S.E.2d at 790 (citation omitted) (emphasis added). "The simplest application of this principle is the rule that all the medical consequences and sequelae that flow from the primary injury are compensable." American Filtrona Co. v. Hanford, 16 Va.App. 159, 163, 428 S.E.2d 511, 513 (1993) (citation omitted) (emphasis added).

Id. at 273-74, 494 S.E.2d at 172-73.

While we have long accepted the doctrine of compensable consequences, employer urges us to adopt a narrow application of the rule when there exists a consequence that is not attributable to a sudden identifiable accident, but is instead gradually incurred. Here, employer contends it is irrelevant whether claimant's knee condition was a compensable consequence of his original back injury because under our Supreme Court's decision in The Stenrich Group v. Jemmott, 251 Va. 186, 467 S.E.2d 795 (1996), an employee may not recover for cumulative trauma injuries, "however labeled or however defined." Id. at 199, 467 S.E.2d at 802. Employer argues that the Stenrich rule bars recovery because claimant's knee condition, even...