Board of Sup'rs of Henrico County v. Martin, 1007-85

• Decision Date: 16 September 1986
• Docket Number: No. 1007-85,1007-85
• Parties: BOARD OF SUPERVISORS OF HENRICO COUNTY, et al v. Johnnie O. MARTIN. Record
• Court: Virginia Court of Appeals

Page 540

348 S.E.2d 540

3 Va.App. 139

BOARD OF SUPERVISORS OF HENRICO COUNTY, et al v. Johnnie O. MARTIN.

Record No. 1007-85.

Court of Appeals of Virginia.

Sept. 16, 1986.

Roger L. Williams (Sands, Anderson, Marks & Miller, Richmond, on brief), for appellants.

Gregory S. Hooe, Richmond, for appellee.

Present: KOONTZ, C.J., and BENTON and MOON, JJ.

MOON, Judge.

Lumbermens Mutual Casualty Company and the Board of Supervisors of Henrico County appeal from an Industrial Commission decision in favor of Johnnie O. Martin awarding him benefits based upon a change of condition of a compensable injury of February 8, 1977. The Commission decided that Martin aggravated the February 8, 1977, injury in an incident on September 4, 1981. Lumbermens and Henrico claim that the 1981 accident constituted a second and separate injury for which Martin should have filed a timely claim but did not, and that he is, therefore, barred from receiving benefits by the statute of limitations. Code § 65.1-87. We agree.

If Martin sustained a second and separate compensable injury on September 4, 1981, he cannot be compensated for it under the 1977 claim. This result would follow even if the second injury was an aggravation of the earlier injury. The Supreme Court stated in Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977):

The "change in condition" which justifies reopening and modification is ordinarily a change, for better or worse, in claimant's physical condition. This change may take such form as progression, deterioration, or aggravation of the compensable condition....

When it is said that change in condition includes aggravation of the first injury, this must be understood to include aggravation only under circumstances that would not amount to a new compensable injury.

Id. at 214, 237 S.E.2d at 99 (quoting 3 A. Larson, Workmen's Compensation Law § 81.31 (1976)). The Court further stated:

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. See Womack, Inc. v. Ellis, 209 Va. 588, 591, 166 S.E.2d 265, 268 (1969). But this rule, which was strongly relied upon in the Industrial Commission's opinion, has no application to a new and separate accidental injury. See Womack, 209 Va. at 593, 166 S.E.2d at 269.

Leonard, 218 Va. at 214, 237 S.E.2d at 99. Therefore, "[a]n application for compensation based on a 'change in condition' cannot be used as a substitute for an original hearing on a new and separate accident." Id. at 215, 237 S.E.2d at 100 (citing Allen v. Mottley Construction Co. 160 Va. 875, 880, 170 S.E. 412, 414 (1933)).

The question then is whether Martin sustained a new compensable injury in 1981. An injury by accident is a "sudden, obvious mechanical or structural change" in the body. Holly Farms v. Yancey, 228 Va. 337, 340, 321 S.E.2d 298, 300 (1984). "[A]n injury is compensable if it appears 'to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.' " Immer and Co. v. Brosnahan, 207 Va. 720, 726, 152 S.E.2d 254, 259 (1967) (quoting Conner v. Bragg, 203 Va. 204, 123 S.E.2d 393 (1962)). Martin was working as a Henrico County fireman at the time of the 1981 injury. The station floor had been soaped down in preparation for waxing and was very slippery. Martin slipped on the floor and ruptured the anterior cruciate ligament of his right knee.

The Commission's finding of fact that the 1981 injury was not a new accident is binding on appeal if supported by credible evidence. Code § 65.1-98. Martin injured his knee in the compensable 1977 accident. Lumbermens Mutual Casualty Company, Henrico County's insurer in 1977, paid benefits, the last being entered August 18, 1981. The specific injury in 1977 was a tear to the posterior horn of the medial meniscus of his right knee. There is no question that Martin continued to have problems with that knee and it was in a weakened condition on September 4, 1981. In fact, on January 27, 1981, prior to the September, 1981 fall, Dr. Caspari performed an arthroscopy of the right knee. However, at that time he observed that the anterior cruciate ligament, which was injured in the September 4, 1981 accident, was normal. There is no evidence that Martin had reinjured the posterior horn of the medial meniscus of his right knee (his 1977 injury) after he slipped in 1981.

When this case was originally heard, all parties stipulated that the 1981 injury constituted another accident. In his opening remarks, Martin's attorney stated: "Mr. Martin's claim is that he suffered a compensable injury in 1981, September 4th of that year." Such evidence as there is concerning the facts of the accident unequivocally relate the slippery condition of the floor to the accident. Martin himself testified: "All right I had slipped at the station while performing duties of waxing floors while on duty and that resulted in more time lost and eventual surgery done in February." Paul Carlson, risk manager for Henrico, at least three times in his testimony referred to the 1981 injury as a "slip and fall" at the firehouse. The employer's first report of the accident filed on September 9, 1981, contains the following description of the accident of September 4, 1981: "Employee was ... stripping old wax from floor. A soapy solution was applied to the floor. Employee was advancing forward taking very small steps. His feet began to slip resulting in a horizontal spread. Employee scrambled for balance and injured [his] knee in the process." ¹

Thomas Yates was listed as a witness on that report and testified on behalf of Martin. Yates testified how he and Martin were stripping the floor to wax it as they did each Friday, when he was interrupted by Henrico County's counsel:

Mr. Smith: [Counsel for Henrico] If the only thing this gentleman is going to testify to is he saw the accident we'll stipulate to it.

Mr. Hooe: [Martin's counsel] During regular business hours--

Mr. Smith: During regular business hours, during the course of his employment, during the scope of his employments. [sic].

Mr. Hooe: Okay, and arising out of his employment.

Mr. Smith: Arising out of.

Mr. Hooe: And more severe than the 1977 ...

Therefore, as the evidence summarized above indicates, Martin's 1981 injury was a distinct and separate injury, resulting from a slip on a soapy floor. However, the Commission, in making its decision, relied upon the September 4, 1981 attending physician's report of Dr. Richard Casperi, who reported that Martin "fell on (R) knee today when [it] gave way on him." However, Dr. Caspari's letters of September 13, 1984, and November 21, 1984, and his deposition were also part of the file. In the September 13, 1984 letter to the insurance company he stated:

Mr. Martin's ACL reconstruction was necessary because of his injury in 1981. His current problem is a direct result of the 1981 injury to his right knee while working at his job.

In the November 21, 1984 letter to Martin's attorney explaining the letter of September 13, he stated: "Indeed his anterior cruciate ligament did completely rupture in 1981, however, this injury was an aggravation of the injury he sustained in 1977."

In Dr. Caspari's deposition, he explained that Martin's problems really began in 1973 with a medial meniscectomy. The 1977 injury further weakened the knee so that in 1981 he was more susceptible to another knee injury. A fair reading of the deposition would require us to find that Dr. Caspari was saying that the 1977 injury weakened the knee and that weakness contributed to cause the 1981 injury. However, the fact that the 1977 injury contributed to the 1981 injury does not mean that the 1981 injury was not also the result of another accident. Furthermore, a doctor's history taken from claimant or others is not evidence upon which the Commission should rely to determine how the accident occurred, because it is impermissible hearsay if used for that purpose. The history is admissible but only to explain the basis of the doctor's opinion.

It is permissible for an expert to give reasons for his opinion, but if he testifies to information received from other sources, such information may be considered only for the purpose of determining what weight should be given the expert's conclusion.

Foley v. Harris, 223 Va. 20, 29, 286 S.E.2d 186, 191 (1982).

Where appropriate, it may be used to impeach or corroborate the claimant. However, claimant cannot rely upon it to impeach his stipulation or unequivocal testimony at trial. See Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922).

We are not holding that reliable hearsay evidence, permitted under Rule 1 of the Rules of the Industrial Commission, is not appropriate where its use comports with the intent of the rule; but we are holding that on the facts of this case the doctor's report was impermissibly used by the Commission as evidence of a fact that the report was not offered in evidence to prove. Furthermore, the doctor's subsequent letters and deposition made clear his testimony in which the doctor in no way negated the slippery floor as a factor in the fall and resulting injury.

Accepting Dr. Caspari's conclusion that the 1981 injury aggravated the 1977 injury, Martin still suffered a compensable new injury for which he should have filed a claim. Leonard, 218 Va. at 215, 237 S.E.2d at 100. Dr. Caspari's testimony does not conflict with the evidence of a new injury. There is no question but that the knee gave way; but upon this evidence it is uncontradicted that it gave way in some part because Mr. Martin had "slipped." The slip put pressure on the weak knee, resulting in a previously undamaged portion of the knee, the anterior cruciate ligament, being damaged. Thus there was a new accident that aggravated an old...