Manassas Ice and Fuel Co. v. Farrar

• Decision Date: 08 October 1991
• Docket Number: No. 1924-90-4,1924-90-4
• Citation: 13 Va.App. 227,409 S.E.2d 824
• Parties: MANASSAS ICE AND FUEL COMPANY and Federated Mutual Insurance Company v. Robert Lee FARRAR. Record
• Court: Virginia Court of Appeals

Page 824

409 S.E.2d 824

13 Va.App. 227

MANASSAS ICE AND FUEL COMPANY and Federated Mutual Insurance Company v. Robert Lee FARRAR.

Record No. 1924-90-4.

Court of Appeals of Virginia.

Oct. 8, 1991.

Elaina Lell (Lewis, Trichilo & Bancroft, P.C., Fairfax, on briefs), for appellants.

John K. Coleman (Slenker, Brandt, Jennings & Johnston, Merrifield, on brief), for appellee.

Present: KOONTZ, C.J., and JOSEPH E. BAKER and DUFF, JJ.

OPINION

JOSEPH E. BAKER, Judge.

Manassas Ice and Fuel Company and Federated Mutual Insurance Company (jointly referred to as employer) appeal from a decision of the Virginia Workers' Compensation Commission ^* (commission) which approved the finding of the deputy commissioner (deputy) that Robert Lee Farrar (claimant) was totally disabled by an industrial accident which occurred on September 6, 1989. Employer argues: (1) the commission erred when it held that claimant had sustained both a new industrial accident and a change in condition; (2) claimant failed to establish by a preponderance of the evidence that he had sustained a new injury by accident; (3) claimant failed to establish by a preponderance of the evidence that he had sustained a material aggravation of a preexisting injury; and (4) the mere possibility of a causative link between claimant's injury and his employment was not sufficient to produce a compensable claim.

Decisions of the commission as to questions of fact, if supported by credible evidence, are conclusive and binding on this Court. Code § 65.1-98; McCaskey v. Patrick Henry Hospital, 225 Va. 413, 415, 304 S.E.2d 1, 2 (1983). The fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding. Russell Loungewear v. Gray, 2 Va.App. 90, 95, 341 S.E.2d 824, 826 (1986). We must view the evidence in a light most favorable to claimant as the prevailing party before the commission. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986).

On November 10, 1988, claimant sustained a work-related injury for which an award was entered for temporary total incapacity. Initially, his injury was diagnosed as a lumbar sacral muscle strain. On November 21, 1988, he returned to work. For the following ten months he worked and engaged in strenuous athletic activities, yet he continued to experience some stiffness in his back and walked in an unnatural manner.

On September 6, 1989, in the course of cleaning his workplace, claimant experienced severe back pain upon rising up from having handled a one hundred pound drum of chlorine. The pain was felt simultaneously upon raising from the bent over position he assumed in order to move the drum.

Using a form provided by the commission, on October 26, 1989, claimant filed an application for hearing. In summary, the application states that claimant is an employee of Manassas Ice and Fuel Company; that in early September 1989, while at work, he suffered a back injury for which he sought workers' compensation benefits; and that his claim was based "alternatively" either on "a new injury or a change in condition on claim 138-17-95 (the prior injury which occurred on November 10, 1988)." (emphasis added).

When claimant was injured in November 1988, he was treated by Dr. Edmundo Morales. Following his September 6, 1989 injury, claimant returned to Dr. Morales who referred him to Dr. Robert F. Lehman, an orthopedist. Dr. Lehman first saw claimant on September 18, 1989. He diagnosed right sciatic syndrome and probable herniated nucleus pulposus at L4-L5 or L5-S1. He ordered a CAT scan which confirmed his initial diagnosis. He also observed that claimant had "right calf atrophy." Dr. Lehman's CLINICAL IMPRESSIONS notes contain the following:

It appears that the patient did have two back injuries, both occurring at the same place of employment, and the likelihood of a single injury producing two disc herniations is remote, and while it is impossible to attribute which disc herniation occurred at which time, it is certain that with the calf atrophy measured in September that some residual effect of the November 1988 injury remained as the atrophy would not have developed that rapidly from the September 1989 injury. In any event, the patient had two significant back injuries, both work-related and both requiring medical treatment with the recommendation made for a lumbar laminectomy and disc removal at the L4-L5 and the L5-S1 levels (emphasis added).

In his deposition, Dr. Lehman further opined that in early September 1989, claimant suffered a reinjury to his lumbar spine when moving a can or a barrel of chlorine.

I.

The first issue framed by employer implies that the commission made two awards, one for a change of condition subsequent to a prior award and the other for a new industrial accidental injury. ¹ We do not interpret the commission's decision to award compensation for any injury other than for the disability resulting from the September 6, 1989 accident.

After reviewing the depositions and the medical records contained in the file, the deputy concluded:

We further find on the basis of Dr. Lehman's uncontradicted medical opinion that the claimant was totally disabled from work from September 18, 1989 onward, and that the disability resulted from the injury sustained in the September 6, 1989 industrial accident, which aggravated the claimant's pre-existing back condition.

The deputy's decision concluded by making the following award:

An award is entered in behalf of Robert Lee Farrar against Manassas Ice & Fuel Company as follows:

$275.69 per week, during incapacity, payable weekly, beginning September 18, 1989.

Medical benefits are awarded for as long as necessary.

In part, relevant to this issue, the commission's opinion concludes:

We also find that the claimant's moving of the can of chlorine weighing approximately one-hundred pounds and feeling pain as he released it while arising is a sufficient incident at a particular time and place to support an accident.

We agree with the finding of the Deputy Commissioner that the claimant has sustained an exacerbation of his prior injury in November 1988 by a second industrial accident occurring on September 6, 1989. We find the medical evidence supports the periods of disability involved.

* * * * * *

For the reasons as set forth, we AFFIRM the Opinion and award of the Deputy Commissioner of June 22, 1990. Interest shall be paid on the award pursuant to § 65.1-98.1 of the Code of Virginia.

* * * * * *

This case is hereby removed from the Review Docket.

Code § 65.1-8 is the foundation for an application based on a change in condition. It is distinct from and does not require a new industrial injury to support compensation for a change of condition. ² But if a new injury exacerbates a previous condition, the resulting accelerated disability is compensable. See Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985). Here, the award did not provide that it was made upon a change of condition. We interpret the commission's decision to hold that claimant sustained a new traumatic injury which caused a disk to become herniated and, in addition, that the new injury exacerbated claimant's preexisting condition. The commission selected claimant's alternative request for an award based on a new injury, and credible evidence in the record supports its decision. Accordingly, we find that the commission did not erroneously make an award for both a change of condition provided for by Code § 65.1-8 and a new injury.

II.

Employer further asserts that claimant failed to prove by a preponderance of the evidence that he sustained a new injury which occurred in the course and arising out of his employment. In support of that argument, employer cites Plumb Rite Plumbing Service v. Barbour, 8 Va.App. 482, 382 S.E.2d 305 (1989) and County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989).

In Richard E. Brown, Inc. v. Caporaletti, 12 Va.App. 242, 402 S.E.2d 709 (1991), Caporaletti was installing a 100 pound furnace in the basement of a commercial building when he injured himself. Caporaletti lowered the furnace to its side and then leaned over it for approximately four to five minutes, cutting and fitting the furnace into place. He then attempted to stand up but was unable to do so. We held that these facts met the requirements of the identifiable...