Herbert Clements & Sons, Inc. v. Harris

• Decision Date: 29 July 2008
• Docket Number: Record No. 3028-07-1.
• Citation: 663 S.E.2d 564,52 Va. App. 447
• Court: Virginia Court of Appeals
• Parties: HERBERT CLEMENTS & SONS, INC. and WCAMC Contractors Group Self-Insured Association v. Randolph Allen HARRIS.

663 S.E.2d 564

52 Va. App. 447

HERBERT CLEMENTS & SONS, INC. and WCAMC Contractors Group Self-Insured Association v. Randolph Allen HARRIS.

Record No. 3028-07-1.

Court of Appeals of Virginia, Chesapeake.

July 29, 2008.

Angela F. Gibbs (Frederick T. Schubert, II; Midkiff, Muncie & Ross, P.C., on brief), Richmond, for appellants.

Byron A. Adams, Newport News, for appellee.

Present: Frank, Humphreys and Millette, JJ.

MILLETTE, JR., Judge.

Herbert Clements & Sons, Inc. and WCAMC Contractors Group Self-Insured Association (collectively, employer) appeal from the December 11, 2007 opinion of the Virginia Workers' Compensation Commission (the commission), reversing the deputy commissioner's May 3, 2007 opinion and awarding Randolph Allen Harris (claimant) benefits due to his right shoulder injury and reinstating benefits for claimant pursuant to its January 3, 2005 award. The commission awarded claimant's claim for payment of pain medication and authorization for right shoulder arthroscopy, which employer defended on the ground that claimant's shoulder condition, medication, and treatment were unrelated to the compensable work injury of June 22, 2004. The commission also denied employer's application for termination of claimant's outstanding award, which asserted claimant was released to pre-injury work on August 16, 2006. On appeal, employer contends the commission erred in (1) determining claimant's shoulder injury was causally related to his industrial accident, and (2) determining claimant was not able to return to his pre-injury employment.¹ Finding no error, we affirm the commission's opinion.

I. BACKGROUND

On employer's appeal from the decision of the commission, we view the evidence in the light most favorable to claimant, the prevailing party below. United Airlines, Inc. v. Sabol, 47 Va.App. 495, 498, 624 S.E.2d 692, 693 (2006). "[W]e are bound by the commission's factual findings where those findings are supported by credible evidence in the record." Tomes v. James City Fire, 39 Va.App. 424, 430, 573 S.E.2d 312, 315 (2002). "`The fact that there is contrary evidence in the record is of no consequence.'" Allen & Rocks, Inc. v. Briggs, 28 Va.App. 662, 673, 508 S.E.2d 335, 340 (1998) (quoting WLR Foods v. Cardosa, 26 Va.App. 220, 230, 494 S.E.2d 147, 152 (1997)). So viewed, the pertinent facts are as follows.

Claimant was employed as a plumbing repair mechanic when he sustained an accidental injury on June 22, 2004 while attempting to remove a septic tank lid with his right hand. The lid snapped in two pieces, thereby jolting claimant forward and breaking the third and fourth vertebrae in his neck. Employer accepted claimant's injury as compensable under the Virginia Workers' Compensation Act (the Act), and the commission entered an award providing claimant temporary total disability compensation benefits beginning June 25, 2004.

On August 6, 2004, Dr. Savas performed cervical spinal surgery on claimant. Four months later, in a December 28, 2004 office note, Dr. Savas recorded: "[Claimant] continues to have some right focal shoulder pain and some intermittent referred pain in his right shoulder toward his right neck trapezial region and down toward his mid humerus.... There may be a component of shoulder pathology that is now manifested as his cervical radicular symptoms have improved." After conducting magnetic resonance imaging (MRI) on claimant's shoulders, Dr. Savas found Superior Labrum from Anterior to Posterior (SLAP) lesions on both shoulders and referred claimant to Dr. Wilhelm, an orthopaedic surgeon, for an evaluation of shoulder pain, especially in claimant's right shoulder.²

Dr. Wilhelm's impression of claimant's condition on October 26, 2005 was "[b]ilateral shoulder pain, posttraumatic, associated with his worker's comp injury." (Emphasis added). Dr. Wilhelm noted: "[T]he degree and extent to which [claimant's] pain was symptomatic was out of proportion to the pain for [sic] expected for a SLAP lesion. I felt that the pain was primarily neurogenic in origin, and I recommended an evaluation by a neurologist and possible pain clinic referral."

Dr. Wilhelm then referred claimant to Dr. Isaacs, a neurologist, for evaluation.³ On July 18, 2006, at his last appointment with claimant, Dr. Isaacs noted: "[Claimant] was advised to return to Dr. Wilhelm for any shoulder complaints. No further treatment is offered from this office." Subsequently, by letter dated August 16, 2006, Dr. Isaacs responded to a request from employer that claimant be released back to work without limitations, and wrote: "From the basis of [claimant's] physical examination and findings, I see no way I could substantiate a disability from a work-related injury. From that standpoint, I referred him back to his orthopedic surgeon in the hopes that he would either make a firm diagnosis or release [claimant] back to work." (Emphasis added).

Dr. Wilhelm recommended pain medication and right shoulder arthroscopy. In the last office note by Dr. Wilhelm contained in the record, dated August 17, 2006, he wrote:

Posttraumatic right upper extremity pain. [Claimant] may have a SLAP lesion. The mechanism of injury would certainly be appropriate, though the possibility of having bilateral SLAP lesions would be quite uncommon, though it is only the right upper extremity which is most symptomatic at this time.... I have recommended that [claimant] have right shoulder arthroscopy and if he did have a SLAP lesion, it could be repaired at that time with a biceps tenodesis or intraarticular repairs indicated.

Dr. Wilhelm also reiterated, "I do feel that the pain which [claimant] has is directly related to the [workers' comp] injury he describes."

On April 17, 2007, Dr. Cohn, an orthopedic surgeon, performed an independent medical examination on claimant. Dr. Cohn deferred to Dr. Savas regarding claimant's work restrictions and recommended claimant be put on significant restrictions regarding his right upper extremity. Previously, on June 9, 2005, a physical therapist administered a functional capacities evaluation and found "[claimant] did not demonstrate the ability to perform essential job tasks at [that] time."

On September 12, 2006, in the midst of claimant's treatment, he submitted a claim seeking payment for pain medication and right shoulder arthroscopy pursuant to Dr. Wilhelm's recommendation. Employer contested the claim on the ground that claimant's shoulder condition, and any medication or surgery to treat the condition, were unrelated to claimant's June 22, 2004 injury. On January 24, 2007, employer applied for a hearing, seeking termination of the commission's outstanding award on the basis that claimant was released to pre-injury work on August 16, 2006 per Dr. Isaacs' letter, which stated: "The only thing I can do is refer back to my own records and evaluation, and from that standpoint, I can release [claimant] back to work without limitations."⁴

The deputy commissioner heard both matters on April 26, 2007. On May 3, 2007, the deputy commissioner rendered her opinion, denying claimant's claim and terminating the commission's award upon the conclusion that claimant was released to pre-injury work as of August 16, 2006. The deputy commissioner found the requested pain medication and right shoulder arthroscopy did not relate to claimant's June 22, 2004 injury. Claimant requested a review by the full commission, and the commission reversed the deputy commissioner's opinion. This appeal by employer followed.

II. ANALYSIS

Employer argues the commission erred in finding claimant's shoulder condition and treatment were causally related to his accidental injury.⁵ Employer further contends that, "[t]o reach the finding that the employer was responsible for the diagnostic [arthroscopy] procedure, the [c]ommission implicitly found that the claimant's shoulder complaints were at least possibly causally related to the work injury" and that such finding was made in error. We disagree with employer's argument, as there was credible evidence to support the commission's findings of causation and that claimant was entitled to diagnostic right shoulder arthroscopy.

Causation

In determining whether credible evidence exists to support the commission's findings of fact, "`the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses.'" Pruden v. Plasser American Corp., 45 Va. App. 566, 574-75, 612 S.E.2d 738, 742 (2005) (quoting Wagner Enterprises, Inc. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35 (1991)). The commission's determination of causation is a finding of fact. Lee County School Bd. v. Miller, 38 Va.App. 253, 260, 563 S.E.2d 374, 377 (2002). "[U]nless we can say as a matter of law that claimant failed to sustain [his] burden of proving causation, the commission's findings are binding and conclusive upon us." Id. at 260-61, 563 S.E.2d at 378 (citing Marcus v. Arlington County Bd. of Supervisors, 15 Va.App. 544, 551, 425 S.E.2d 525, 530 (1993)).

The record contains ample evidence that claimant's shoulder condition was caused by his June 22, 2004 injury, including office notes by his treating physicians, Dr. Savas and Dr. Wilhelm. On December 24, 2004, Dr. Savas noted the possible presence of shoulder pathology as claimant's cervical radicular symptoms had improved following cervical spinal surgery. On October 26, 2005, Dr. Wilhelm identified "[b]ilateral shoulder pain, posttraumatic, associated with [claimant's] worker's comp injury." Again, on August 17, 2006, Dr. Wilhelm reaffirmed he believed claimant's pain was directly related to his accidental injury. With substantial evidence in the record to support the commission's finding that claimant's shoulder condition and treatment were causally related to his accidental injury, we affirm its finding of causation.

Diagnostic Procedure

We likewise affirm the commission's decision...