Sykes Enters., Inc. v. Cox, Record No. 1182-13-3
| Decision Date | 11 March 2014 |
| Docket Number | Record No. 1182-13-3 |
| Court | Virginia Court of Appeals |
| Parties | SYKES ENTERPRISES, INC. AND ZURICH AMERICAN INSURANCE COMPANY v. ORBRA L. COX |
UNPUBLISHED
Present: Judges Humphreys, Beales and Huff
Argued at Salem, Virginia
MEMORANDUM OPINION* BY
Robert M. McAdam (Kalbaugh Pfund & Messersmith, on brief), for appellants.
Kerry S. Hay for appellee.
Sykes Enterprises, Inc. and its insurer (collectively, employer) appeal the decision of the Workers' Compensation Commission (the commission) awarding supplemental medical benefits for hearing loss to the claimant, Orbra L. Cox, relating to a workplace injury Ms. Cox suffered on September 29, 2010. Employer claims that the commission erred in finding that the claimant proved that "she had sustained a hearing loss" that was caused by the work-related accident. Employer contends that no credible evidence supports the commission's finding of causation. For the following reasons, we affirm the commission.
On September 29, 2010, claimant tripped over a plastic rock display while at work, and landed on her face. A timely claim for benefits was filed on October 18, 2010. Claimant's original award, dated April 5, 2011, indicated that benefits were awarded for "reasonable,necessary, and authorized medical treatment for the following body parts injured during the Injured Worker's workplace injury of September 29, 2010: contusion to head, lumbar and neck strain." Later, on October 12, 2011, claimant filed an amended claim for benefits in which she sought to amend the nature of the injury to include, among other things, hearing loss.
At an April 26, 2012 hearing before a deputy commissioner, claimant testified that "two days after I fell, I woke up and couldn't hear" out of her right ear. Prior to the work-related accident, claimant was not experiencing any problems hearing in her right ear.
On October 20, 2010, claimant saw Dr. Michael S. Dew, of Associated Neurologists of Kingsport, for the first time. The office note from that visit indicated that claimant had had a fall, and Under the "impression" section of the October 20, 2010 summary, Dr. Dew diagnosed, among other things, "Tinnitus."1 Claimant returned to Dr. Dew on November 10, 2010, and in an office note pertaining to that visit, Dr. Dew stated, in relevant part, "[Claimant] still is mostly concerned about ringing and loss of hearing in her ear." Dr. Dew also wrote the following in the November 10, 2010 office note:
She also notes on her hearing test, which we do not have available, that the audiologist told her that her right ear drum was not moving which certainly may [sic] consistent with the MRI findings and the patient's complaints of hearing loss and tinnitus. I am certainly suspicious that this may be posttraumatic though I would like to refer her to ear, nose, and throat to have them evaluate and see whether any further intervention is required in that regard as it is appearing increasingly that this is not primarily neurologic in etiology. We will continue her off work until we can get the ENT evaluation due to her persistence of symptoms.
(Emphasis added). In the "impression" section of the November 10, 2010 office note, Dr. Dew wrote, among other things, "Tinnitus, posttraumatic."
Claimant visited Dr. Dew once again on December 28, 2010. In an office note pertaining to that visit, Dr. Dew indicated that claimant "is seen today in follow-up for her headaches and tinnitus following a work related accident" and that "her primary complaint is persistent neck pain." In the "impression" section of the December 28, 2010 office note, Dr. Dew wrote, among other things, "posttraumatic tinnitus."
Claimant visited Dr. William J. Wallace, an ear, nose, and throat (ENT) specialist, for the first time on November 22, 2010. After that initial visit on November 22, 2010, claimant visited Dr. Wallace five additional times - on January 3, 2011; January 17, 2011; February 24, 2011; March 18, 2011; and, March 24, 2011.
On March 10, 2011, Dr. Wallace faxed to employer's insurance adjuster his answers to several questions posed by the insurer. Pertinent to this appeal, the fourth question asked, "In your opinion do you feel the ringing in her ear and hearing loss is related to her work injury?" In response to that question, Dr. Wallace replied, "Yes." During claimant's next appointment, on March 18, 2011, Dr. Wallace performed a diagnostic procedure on claimant's right ear, which yielded a diagnosis of a cholesteatoma.2
Dr. Wallace referred claimant to Dr. David R. Osterhus, one of Dr. Wallace's partners who is also an ENT specialist. Dr. Osterhus examined claimant on April 12, 2011. In a write-up following that visit, Dr. Osterhus reported that claimant had indicated that 3 A May 10, 2011 note from Dr. Osterhus reads as follows:
The patient continues to claim that she did not have any significant hearing loss prior to her fall incident but I have no hearing testing prior to the incident to show that that is the case. Although it is unlikely that a fall produced a cholesteatoma in the right ear, it is certainly conceivable that the fall may have been [sic] dislodged or altered the relationship of cholesteatoma and poorly functioning or partially eroded ossicles. The exploratory surgery that has previously been performed will likely delay progression of cholesteatoma given that it was able to debride a significant portion of the cerumen/cholesteatoma debris. This will likely progress over time. She is encouraged to attempt to get her workman's comp to reconsider the case and/or seek a second opinion regarding that matter. From our standpoint, she still would benefit from tympanomastoid surgery but I cannot be certain that her condition was caused by a fall in September.
Employer sent Dr. Osterhus a questionnaire dated May 2, 2011. The second question reads as follows: "Do you feel that the cholesteatoma and eroded ossicles and inner ear structures in the employee's right ear were caused by a fall the employee sustained in September, 2010, falling on the left side of her face?" In response, Dr. Osterhus checked the line next to "unable to determine" and wrote next to his selection, "but unlikely." Dr. Osterhus also wrote on the questionnaire,
Dr. James C. Brassfield performed an independent medical examination on claimant on August 8, 2011. In his assessment of claimant, Dr. Brassfield noted that claimant had not mentioned anything to him about her hearing loss or tinnitus, although details about her hearing loss were included in the medical records that were available to Dr. Brassfield.
On May 29, 2013, the commission issued a review opinion, reversing the deputy commissioner's finding that claimant's hearing loss was not causally related to her work-relatedaccident. The commission pointed out that Dr. Osterhus noted a temporal relationship between the fall and the claimant's hearing loss and that Dr. Osterhus also indicated that it was "certainly conceivable" that claimant suffered hearing loss in the accident, although he could not be certain of causation. Moreover, the commission found that Dr. Osterhus never opined that the hearing loss was not related to the work-related accident.4 In finding that claimant satisfied her burden of proving a causal relationship between her workplace accident and her hearing loss, the commission gave significant weight to Dr. Wallace's opinion that claimant had indeed suffered hearing loss in the work-related accident. The commission also credited claimant's testimony at the evidentiary hearing and found, as a matter of fact, that she had not suffered hearing loss prior to the workplace accident. Based on this evidence, the commission concluded that claimant's hearing loss resulted from her workplace accident.
A compensable injury under the Act "means only injury by accident arising out of and in the course of" the employment. Code § 65.2-101. In order to establish that an injury by accident has occurred, a claimant must prove an "identifi[able] incident that occurs at some reasonably definite time," which is the cause of "an obvious sudden mechanical or structural change in the body." VEPCO v. Cogbill, 223 Va. 354, 356, 288 S.E.2d 485, 486 (1982) (citations omitted)). The commission in this case found that claimant carried her burden of showing causation. Thus, on appeal from the commission, this Court reviews the facts in the light...
To continue reading
Request your trial