Advance Auto & Indem. Ins. Co. of N. Am. v. Craft

• Decision Date: 24 June 2014
• Docket Number: Record No. 2049–13–3.
• Court: Virginia Court of Appeals
• Parties: ADVANCE AUTO AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. Brenda Lee CRAFT.

63 Va.App. 502

759 S.E.2d 17

ADVANCE AUTO AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

v.Brenda Lee CRAFT.

Record No. 2049–13–3.

Court of Appeals of Virginia,

Lexington.

June 24, 2014.

J. Derek Turrietta (W. Russell Himes; Stackhouse, Nexsen & Turrietta, Norfolk, on briefs), for appellant.

Kerry S. Hay, Clintwood, for appellee.

Present: Judges HUMPHREYS, PETTY and CHAFIN.

CHAFIN, Judge.

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 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 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 discon 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 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.

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...