Opinion
Record No. 1728-93-2
April 19, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mary Louise Kramer; Sarah Y. M. Kirby; Sands, Anderson, Marks Miller, on briefs), for appellants.
(Brian J. Cusce; Neil Stout, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Pinkerton, Inc. and its insurer contend that the Workers' Compensation Commission erred in (1) awarding temporary total disability benefits to Patsy M. Braxton pursuant to her application alleging a change in condition; (2) finding that Braxton met her burden of proving that her ongoing treatment and disability were causally related to her original injury by accident; and (3) finding that she was not required to market her residual work capacity from July 7, 1992 to July 28, 1992. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
On appellate review, we will construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
I.
The doctrine of compensable consequences provides that, "[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 283, 348 S.E.2d 876, 879 (1986). In Bartholow Drywall Co., Inc. v. Hill, 12 Va. App. 790, 797, 407 S.E.2d 1, 5 (1991), we held "that the doctrine of compensable consequences is applicable both to aggravation of a prior compensable injury and a new injury for the purpose of establishing compensability of the subsequent injury." Accordingly, we cannot say as a matter of law that the commission erred in applying the doctrine of compensable consequences in this case merely because Braxton filed a change in condition application rather than an application alleging a new injury by accident.
II.
On September 9, 1989, Braxton sustained a low back injury while pulling a cart. The injury arose out of and in the course of her employment with Pinkerton as a security guard. Pinkerton accepted the claim as compensable and paid for periods of total and partial disability commencing with the date of the accident. On July 15, 1992, Braxton filed a change in condition application seeking total disability benefits effective January 6, 1992.
As of January 6, 1992, Braxton was released by her treating physician, Dr. Michael J. Decker, to return to light-duty work. On March 3, 1992, Braxton exacerbated her lower back injury while reaching for a telephone at home. At that time, Dr. Decker noted an increase in her subjective low back symptoms and excused her from work. On March 24, 1992, Dr. Decker found that Braxton had not improved following completion of physical therapy and that she was to remain out of work until re-evaluated on April 7, 1992. On April 7, 1992, Dr. Decker noted continued symptoms and restricted Braxton from working. On May 5, 1992, Dr. Decker observed that it was not safe for Braxton to return to her present job and opined that her original injury in September 1989 was the cause of her present inability to work.
Dr. Decker continued to opine that Braxton was totally disabled through June 2, 1992. On June 30, 1992, he released her for return to light duty, effective July 7, 1992, with restrictions of no lifting over ten pounds above her knees and no bending or twisting. However, on July 28, 1992, Dr. Decker noted that Braxton's symptoms had worsened two weeks earlier after she attempted to catch a falling telephone at home, and that she was totally disabled as of July 28, 1992.
In August 1992, Braxton was admitted to St. Mary's Hospital where she was treated by neurologist Dr. Edward R. Isaacs. Dr. Isaacs diagnosed chronic severe lumbosacral strain with acute exacerbation and obesity. On September 30, 1992, Dr. Isaacs observed that Braxton had fallen several days earlier and again exacerbated her low back symptoms. On October 15, 1992, Dr. Isaacs noted increased symptoms. As of November 30, 1992, Braxton continued under the care and treatment of Drs. Decker and Isaacs.
Upon this record, the commission found that Braxton's current back complaints and disability were caused by non-work related intermittent exacerbations of her work related low back injury. The commission awarded temporary total disability benefits to Braxton commencing on March 3, 1992 on the basis that these injuries and the resulting disability were compensable consequences of her original industrial injury. Dr. Decker's records and opinions provide sufficient credible medical evidence to support the commission's finding that Braxton established a causal connection between her original injury and the subsequent exacerbations. Accordingly, we cannot say that the commission erred in applying the doctrine of compensable consequences as a basis for awarding temporary total disability benefits to Braxton on her change in condition application.
In its role as fact finder, the commission was entitled to accept Dr. Decker's opinions regarding causation and disability and to reject the opinions of the independent medical examiners, Dr. Walter Mayer and Dr. William Deyerle. "Questions raised by conflicting medical opinions must be decided by the commission." Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1986).
III.
Dr. Decker's medical records support the commission's finding of total disability commencing March 3, 1992 and continuing. The only period of time in which Braxton was released to light duty was July 7, 1992 through July 28, 1992. During this period, she exacerbated her back symptoms on or about July 14, 1992, which resulted in her total disability commencing July 28, 1992. As of July 28, 1992, Dr. Decker opined that Braxton was totally disabled from work. Therefore, she was under no duty to market her residual capacity after that date. The commission found that Dr. Decker's release to return to work was invalid inasmuch as it was prospective by seven days and that the period was too brief to require Braxton to look for work.
A determination by the commission that the period of disability at issue was too brief to allow a claimant to market her residual capacity is in harmony with previous commission decisions and our holding in Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 42-43, 422 S.E.2d 165, 172 (1992). Therefore, we find no reason to invalidate the commission's construction of the claimant's duty to market. Id.
Finally, in ruling that Braxton did not unjustifiably refuse selective employment, the commission was entitled to believe her testimony that she provided a copy of Dr. Decker's light duty release to Pinkerton in July 1992, but was not offered selective employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.