Opinion
Record No. 1005-96-4
December 17, 1996
Appeal from the Virginia Workers' Compensation Commission
(Lisa C. Healey; Siciliano, Ellis, Dyer Boccarosse, on brief), for appellants.
(John G. Cadden, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Schuller International, Inc. and its insurer (hereinafter collectively referred to as employer) contend that the Workers' Compensation Commission (commission) erred in finding that (1) Ronald E. Painter (claimant) was not capable of performing the duties of his pre-injury work as of March 28, 1995, and (2) claimant's headaches and neck pain were causally related to his compensable May 28, 1992 injury by accident. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
I.
Employer contends that the commission erred in considering any injuries which might be related to claimant's May 28, 1992 injury by accident, other than claimant's right forearm and left leg/knee injuries, because the memorandum of agreement referred only to those injuries. This issue is controlled by our decision in Rosello v. K-Mart Corp., 15 Va. App. 333, 423 S.E.2d 214 (1992). As in Rosello,
[t]he [July 1, 1993] award in this case did not specify a precise disability. It simply recited an industrial accident, a general injury, and consequent disability. In seeking relief from that award, [employer] bore the burden of proving its claim either that [claimant] was no longer disabled or that such disability did not result from the accident.
Id. at 336, 423 S.E.2d at 216. Therefore, the commission did not err in addressing the issue of whether claimant's compensable May 29, 1992 industrial accident caused his head and neck pain and in placing the burden of proof upon employer.
On appeal, we view the evidence in the light most favorable to the prevailing party below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.'" Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Employer bore the burden of proving that claimant was capable of performing all of his pre-injury job duties. Crystal Oil Co. v. Dodson, 12 Va. App. 1014, 1021, 408 S.E.2d 252, 253-54 (1991). Unless we can say as a matter of law that employer's evidence sustained its burden of proof, the commission's findings are binding and conclusive upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
No evidence disputed employer's assertion that Dr. Frank Pettrone, the orthopedic surgeon who treated claimant's compensable left knee injury, released claimant to return to his pre-injury job as a truck driver as of March 28, 1995. However, because Dr. Pettrone only treated claimant for his left knee injury, the March 28, 1995 release pertained solely to that injury.
Dr. Robert Nirschl, the orthopedic surgeon who treated claimant's compensable right upper extremity injuries, opined on May 18, 1995, that claimant should not lift weights in excess of twenty-five pounds. Dr. Nirschl noted that claimant suffered from residual pain in his right distal forearm, right elbow, and right shoulder as a result of the May 28, 1992 industrial accident. Dr. Nirschl assessed a permanent impairment of five percent to claimant's right upper extremity on the basis of claimant's residual pain complaints. The uncontroverted evidence proved that claimant's pre-injury work as a truck driver required him to lift a tarpaulin, which weighed fifty to seventy-five pounds.
Because claimant's pre-injury job required that he lift weights in excess of Dr. Nirschl's lifting restriction, we cannot find as a matter of law that employer's evidence sustained its burden of proving that claimant could perform all of the duties of his pre-injury employment.
II.
On June 25, 1992, Dr. James A. McCoig, the orthopedic surgeon who first treated claimant for injuries he sustained in the May 28, 1992 industrial accident, noted that, beginning immediately after the accident, claimant suffered from neck pain starting in his upper cervical spine radiating into the occipital region. On June 30, 1992, Dr. McCoig noted that claimant was suffering from headaches. On October 12, 1992, Dr. McCoig noted that claimant still suffered from "bad headaches" at the base of his skull. On November 5, 1992, Dr. McCoig noted that claimant's headaches continued.
On November 17, 1992, Dr. Zack Perdue examined claimant for headaches. Dr. Perdue noted that these headaches began one to two weeks after claimant's May 28, 1992 fall. Dr. Perdue diagnosed post-traumatic headaches and opined that, "[t]he history clearly suggests a relationship to the fall on May 29 [sic], 1992. I have no evidence that they are caused by any other condition."
In August 1993, Dr. Perdue referred claimant to Dr. David S. Klein for treatment of persistent head and neck pain. Dr. Klein performed nerve blocks and diagnosed fibromyalgia and neuralgia, probably secondary to the injury claimant suffered on May 28, 1992. Upon Dr. Perdue's recommendation, Dr. Stuart R. Stark performed a second neurological evaluation on claimant on March 24, 1994. Dr. Stark diagnosed post-traumatic headaches and prescribed medication and physical therapy.
After claimant's MRI revealed herniated cervical discs, Dr. Perdue referred claimant to Dr. Ritchie Gillespie, a neurosurgeon. Dr. Gillespie concluded that claimant's headaches might be related to degenerative arthritis of the cervical spine. On December 7, 1994, Dr. Neil Crowe, a neurologist, examined claimant for head and neck pain. On March 28, 1995, Dr. Crowe opined that claimant's headaches, neck pain, and arm and hand pain were causally related to the May 28, 1992 industrial accident. On June 6, 1995, Dr. Richard C. Cooper agreed with Dr. Crowe's opinion.
Based upon the totality of the medical evidence, we cannot find as a matter of law that the commission erred in finding that claimant's headaches and neck pain were causally related to his May 28, 1992 compensable injury by accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.