Opinion
Record No. 1797-92-3
January 14, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Richard D. Lucas; William H. Fralin, Jr.; Woods, Rogers Hazlegrove, on brief), for appellants. Appellants submitting on brief.
No brief for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellee's motion for an extension of time to file a brief is denied. Walter E. Branch, Jr. filed an application to reinstate temporary total compensation benefits based on a change in condition. The Workers' Compensation Commission found from a preponderance of the evidence that Branch was disabled and that his disability was caused by his prior industrial accident.
Nationwide Homes, Inc. contends that the commission erred in finding a causal connection between Branch's current disability and his October, 1989, industrial injury and in considering Branch's written statement. Upon reviewing the records and briefs, we conclude that the commission did not err. Therefore, we affirm the commission's decision.
A claimant who applies for additional disability benefits based on a change in condition bears the burden of proving the change in condition by a preponderance of the evidence. Great Atlantic Pacific Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). The commission's determination that a disability is causally related to an industrial injury is a factual finding that will not be disturbed on appeal if supported by credible evidence, Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989), despite the fact that evidence in the record supports a contrary finding.Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). A "change in condition" under Code § 65.2-101(C) "means a change in physical condition of the employee as well as any change in the conditions under which compensation was awarded, suspended, or terminated which would affect the right to, amount of, or duration of compensation." When conflicting credible medical opinions exist as to whether a claimant's recurrent disability is caused by the industrial accident, the commission's finding as to causation is binding on appeal. Estate of Montgomery v. City of Portsmouth Police Dep't, 4 Va. App. 525, 529, 358 S.E.2d 762, 764 (1987). The commission had before it conflicting medical opinions as to whether Branch's disability had been caused by his original industrial accident or was a new, unrelated injury. The commission resolved the conflict and found that the disability was caused by the original industrial accident. The evidence supporting that finding was credible and, therefore, will not be disturbed on appeal.
Branch suffered a compensable back injury on October 12, 1989, resulting in pain in his back and right leg. Dr. James R. Jackson, his treating physician, diagnosed a ruptured L4-5 disc on the right side and annular bulging of the L3-4 disc. Dr. Jackson removed the L4-5 disc and explored the L3-4 disc space. No evidence of injury or abnormality was found in the L3-4 disc. Nationwide Homes accepted Branch's claim and paid compensation for temporary total disability for the period of November 9, 1989, through January 9, 1990. Branch returned to work on January 8, 1990, but subsequently was laid off. He worked intermittently at a variety of jobs until December, 1991. Branch did not suffer any additional injuries during this time.
Branch began to experience back and bilateral leg pain approximately six months after the November, 1989, surgery and finally sought further treatment from Dr. John Feldenzer in June, 1991. Dr. Feldenzer reported that Branch had new bulging of the L3-4 disc on the left side, as well as a small recurrent herniation on the right L4-5 disc attributable to the October, 1989, injury. He concluded that Branch's left-side leg pain was caused by the new L3-4 disc bulging and that the condition was not causally related to the 1989 industrial injury. At the time of the examination, Branch did not complain of significant pain in the right leg, and Dr. Feldenzer believed that the recurrent herniation in the L4-5 disc was not causing any pain or disability.
In November, 1991, Branch consulted Dr. Jacques Botton, who also diagnosed a possible herniation on the right side of the L4-5 disc. Dr. Botton agreed with Dr. Feldenzer that Branch also had a disc herniation at L3-4, and he noted that a problem there was apparent at the time of Branch's surgery in November, 1989. Dr. Botton concluded that the conditions of both the L3-4 and L4-5 discs were related to Branch's 1989 injury; however, in his opinion, the recurrent herniation of the L4-5 disc was causing the right-side leg pain that Branch was then experiencing.
Based on the evidence in this record, the commission found that Branch had proved a causal connection between the October, 1989, industrial accident and his subsequent disability. The commission noted that Drs. Feldenzer and Botton agreed that Branch was disabled from his back and leg symptoms and that the disc herniation at L4-5 was a recurring condition originating with the October, 1989, injury. The doctors differed only as to the cause of Branch's symptoms. The commission was persuaded by Dr. Botton's conclusion that the L4-5 disc herniation caused Branch's pain and disability. The commission noted, however, that, even if the L3-4 disc herniation was causing or contributing to Branch's present disability, based on Dr. Botton's opinion, the L3-4 disc bulging was also caused by the October, 1989, injury.
Credible evidence supports the commission's finding. After Branch's injury in October, 1989, the discs at the L3-4 and L4-5 level had been affected, although no surgery was indicated for the L3-4 disc bulging. Branch now suffers from herniation of both discs. Both Drs. Feldenzer and Botton agreed that the present L4-5 disc herniation was causally connected to the 1989 injury, and Dr. Botton attributed Branch's present disability to that recurrent herniation.
We reject Nationwide Homes' argument that, because one of Dr. Botton's opinions was based on a false premise, the commission could not resolve the conflict in the medical evidence in favor of Dr. Botton's conclusions. Nationwide contends that Dr. Botton's conclusion that the present L3-4 disc herniation was related to the 1989 L3-4 disc bulging was not credible because it was based on his mistaken assumption that the 1989 L3-4 disc condition was a "herniation" instead of an "annular bulging." Whether Dr. Botton's conclusion as to the causation of the present L3-4 disc herniation was premised on an erroneous assumption is of no consequence. The commission found that Branch's disability was caused by the L4-5 disc herniation. That finding is supported by credible evidence. The evidence also supports the commission's determination that the L3-4 disc herniation is attributable to Branch's 1989 injury. Whatever the extent of the L3-4 involvement in Branch's current disability, the evidence shows that he injured the L3-4 disc in 1989, and that injury persists today.
The commission decided that it would consider Branch's written brief even though it was filed late. In reaching that decision, the commission first concluded that the late filing did not prejudice Nationwide. The commission is statutorily authorized to make rules governing its procedure. Code § 65.2-201. We cannot say that the commission's construction of its rule is unreasonable.
For the reasons stated, we affirm the commission's decision.
Affirmed.