C.D.S. Const. Services v. Petrock

• Decision Date: 21 April 1978
• Docket Number: Nos. 770971 and 771004,s. 770971 and 771004
• Citation: 243 S.E.2d 236,218 Va. 1064
• Parties: C.D.S. CONSTRUCTION SERVICES v. Jack D. PETROCK. Jack D. PETROCK v. SLATTERY ASSOCIATES. Record
• Court: Virginia Supreme Court

Page 236

243 S.E.2d 236

218 Va. 1064

C.D.S. CONSTRUCTION SERVICES v. Jack D. PETROCK.

Jack D. PETROCK v. SLATTERY ASSOCIATES.

Record Nos. 770971 and 771004.

Supreme Court of Virginia.

April 21, 1978.

R. Craig Jennings, Arlington (Slenker, Brandt, Jennings & O'Neal, Arlington, on brief), for appellant in Record No. 770971.

J. Hunt Brasfield, Alexandria (Ashcraft, Gerel & Koonz, Alexandria, on brief), for appellee in Record No. 770971 and appellant in Record No. 771004.

Edward H. Grove, Fairfax (Brault, Lewis, Geschickter & Palmer, Fairfax, on brief), for appellee in Record No. 771004.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

COMPTON, Justice.

In this industrial accident case, we must decide whether there was credible evidence to support a finding that one rather than the other of two employers is liable for the payment of benefits for a herniated disc of the low back.

The claimant, Jack D. Petrock, injured his cervical spine as the result of a fall suffered in the course of his employment as a carpenter with appellee Slattery Associates in Arlington on October 14, 1976. Approximately six weeks later, when working in Falls Church for appellant C.D.S. Construction Services, the claimant felt a "shock" in his low back while lifting light-weight objects, followed by severe pain. Within two weeks thereafter, he underwent surgery for a ruptured lumbar disc.

Prior to the second incident, Petrock filed a claim against Slattery for workmen's compensation benefits flowing from the first accident. After the second incident, he filed an application for a hearing against Slattery based upon change of condition alleging a reoccurrence of his initial injury. He also filed an original claim against C.D.S. alleging that the low back condition and resulting incapacity stemmed from the second incident.

Following a hearing on the consolidated claims, a deputy commissioner determined that the claimant had recovered from the injuries suffered in the first accident by the time he commenced his employment with C.D.S., and that the disabling condition occurring after the second incident was unrelated to the first accident. An award was accordingly entered against C.D.S. ordering payment of benefits resulting from the second accident, which was affirmed upon review by the full Commission. The Commission, of course, did not require Slattery to pay any benefits as the result of the second accident based on change of condition.

We granted C.D.S. an appeal. We also awarded the claimant a separate appeal against Slattery so that in case the award in Petrock's favor against C.D.S. for the disc condition is reversed, we can consider Petrock's alternative claim that he is entitled to compensation for that disability from Slattery. The parties are agreed that Petrock is entitled to benefits from one of these employers.

In the first accident, Petrock, employed by Slattery at an average weekly wage of $362, fell approximately six feet from a wall brace onto a floor, landing on his knees and striking the wall with his head and left shoulder. Based on an examination made on the day of the fall, and several subsequent examinations during the four days after the accident, Dr. Michael F. Lapadula, an Arlington general surgeon, diagnosed Petrock's injuries as: strain of the cervical spine and left shoulder; abrasions-contusions of the left shoulder, anterior chest wall, left knee and right tibia. The physician reported that on the day of the accident "palpation of the spine disclose(d) spasm and tenderness at C3-C6 and the rest of the vertebral column (was) devoid of any findings." Five days after the accident, Petrock was seen by Dr. A. T. Ventzek, a specialist in family practice whose office was in Woodbridge. Ventzek treated Petrock for "cervical sprain and bursitis of the left knee." On November 3, 1976, he reported that Petrock could then return to work on "light duty status" until "approx. 11/18/76, when he should be able to resume full duty." In a report dated November 14, 1976, Ventzek stated that while the claimant was responding to treatment, he was "not fully recovered on his last visit here on 11/10/76."

On November 18, 1976, Petrock commenced his employment with C.D.S. at an average weekly wage of $400. During the performance of his carpentry duties on November 29, 1976, Petrock was handling light shelving boards approximately three feet long and ten inches wide. As he "bent over to pick a couple of them up" from the floor, he experienced the "shock" in his back. While "it didn't hurt real bad at the time," Petrock's foreman sent him home later in the day when the claimant tried to continue working but exhibited difficulty in walking.

Still later that same day, the claimant was hospitalized in Woodbridge. Four days thereafter, a neurosurgeon, Dr. W. A. Rouady, examined Petrock and on December 10 performed surgery on his low back, diagnosing his condition as "ruptured disc, L4-L5, left side". In a medical report filed after the decision by the hearing commissioner but before final action was taken by the full Commission upon review, the neurosurgeon wrote:

"it is my opinion that Mr. Petrock's damage to the disc was caused by his first injury which he received on October 14, 1976.

"Because the severity and the dynamic of the injury he received at that time are characteristically known to cause a ruptured disc.

"The second injury was of minimal degree to cause any damage."

The claimant returned to his family practitioner, Dr. Ventzek, during the month following the operation, with continued complaints of low back discomfort. In February 1977, this physician reported:

"Apparently this patient sustained injury to the low back on 10/14/76 and was not aware of any low back discomfort, although his wife complained that he had made some references to low back discomfort. However, he did not call this to my attention because the cervical sprain was so severe, and overwhelming.

"The patient returned to work for the new company CDS Construction, and apparently still had some discomfort in the neck region when the second accident occurred while he was lifting a light piece of lumber. At this time he denied any severe low back pain that would have brought on the pain in the low back. Therefore, it is assumed that the patient ruptured the disc in the low back during the first accident as it was quite traumatic when he was standing on a wall bracer and fell on 10/14/76."

On March 11, 1977, Petrock was examined during the course of a "neurological consultation" by Dr. Norman H. Horwitz of Washington, D.C., who reported that the claimant "complains of residual low back and neck pain which he dates from injuries sustained on 14 October 1976." Horwitz concluded his report by stating:

"It is impossible for me to make a determination concerning the relationship of the first injury to his present low back problem. This crucial information can only be obtained from the initial treating physician who had an opportunity to interview the patient and examine him prior to the second injury."

Five days later, and the day before the hearing on March 17, 1977, Ventzek again wrote to Petrock's attorney, apparently not having examined his patient since writing the February report, supra. He repeated his...