Brown & Root, Inc v. Luther H. Richards

• Court: Court of Appeals of Virginia
• Decided: December 19, 1995
• Docket: 1548954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

BROWN & ROOT, INC. AND ARGONAUT INSURANCE COMPANY

v. Record No. 1548-95-4 MEMORANDUM OPINION * PER CURIAM LUTHER H. RICHARDS DECEMBER 19, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Mark D. Crawford; Friedlander, Misler, Friedlander, Sloan & Herz, on briefs), for appellants.

(Gregory J. Harris, on brief), for appellee.

Brown & Root, Inc. and its insurer (hereinafter collectively

referred to as "employer") contend that the Workers' Compensation

Commission erred in finding that (1) Luther H. Richards sustained

a disabling injury by accident arising out of and in the course

of his employment on July 13, 1994; and (2) employer was

responsible for the cost of medical treatment rendered to

Richards by physicians in Texas. 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. Injury By Accident and Disability

On appeal, we view the evidence in the light most favorable

to the prevailing party below. R.G. Moore Bldg. Corp. v.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In

order to carry his burden of proving an 'injury by accident,' a

claimant must prove that the cause of his injury was an

identifiable incident or sudden precipitating event and that it

resulted in an obvious sudden mechanical or structural change in

the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,

865 (1989). We must uphold the commission's findings of fact if

they are supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

The determination of causation is a factual finding. Ingersoll-

Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817

(1989).

Richards testified that on July 13, 1994, as he climbed off

of a motor grader, he missed a step to the blade, and caught his

entire weight with his arms. He pulled something in his back and

neck and he felt a burning sensation from the back of his head to

his feet. Richards told his coworkers that he had hurt himself.

Although he continued to try to work, he was in pain the rest of

the day. That evening, Richards felt dizzy as he stood to go to

the dinner table. Later, when he got out of bed to turn off a

light, he felt back, shoulder and neck pain, and he lost control

of his arms and legs.

Dr. Anil Patel treated Richards the following day. Richards

reported a history of slipping from a grader as he missed a step.

Dr. Patel referred Richards to Dr. Ian Wattenmaker, a

2 neurosurgeon. Dr. Wattenmaker noted a history consistent with

Richards' testimony as to how the accident occurred. Dr.

Wattenmaker also noted that, several times each day since the

incident, Richards had felt an electric burning sensation that

started at his neck and radiated into all extremities. Following

his review of an MRI, Dr. Wattenmaker diagnosed cervical

myelopathy, C5-6 spondylosis and disk herniation with cord

compression, and C4-5 disk herniation with cord compression. Dr.

Wattenmaker opined that Richards' back and neck symptoms had

worsened since the July 13, 1994 accident, and Dr. Wattenmaker

performed a diskectomy at C4-5 and C5-6 and interbody cervical

fusions at C4-5 and C5-6. Dr. Wattenmaker opined that Richards'

soft disc herniation was causally related to the July 13, 1994

injury by accident. The evidence supports the commission's finding that

Richards' proved he sustained a compensable neck injury on July

13, 1994. Richards' testimony and the medical records and

opinions of Dr. Wattenmaker provide credible evidence to support

the commission's findings. Richards testified to an identifiable

incident, which was consistent with the medical histories. Dr.

Wattenmaker linked Richards' herniated disc and resulting surgery

and disability to this incident.

We find no merit in employer's argument that Dr.

Wattenmaker's opinion was not credible because he did not have a

complete medical history. Dr. Wattenmaker's records indicate

3 that he was aware that Richards suffered from numerous incidents

of pain and a burning sensation after the initial injury.

Moreover, although Richards had pre-existing cervical

spondylosis, Dr. Wattenmaker attributed the disc herniation and

subsequent surgery to the July 13, 1994 injury by accident.

Although Dr. Charles Clegg, a chiropractor, had earlier

treated Richards for back and neck pain, Dr. Clegg reported that,

after treatment with physical therapy and heat, Richards "was

doing well" upon release on May 11, 1994. Richards had been

doing well since May 11, 1994 and was able to work as a heavy

equipment operator before July 13, 1994. "[T]he employer takes

the employee as he is and if the employee is suffering some

physical infirmity, which is aggravated by an industrial

accident, the employer is responsible for the end result of such

accident." McDaniel v. Colonial Mechanical Corp., 3 Va. App.

408, 414, 350 S.E.2d 225, 228 (1986).

Medical Treatment in Texas Where an employer denies a claim and refuses to pay

compensation to an injured employee, the employee is permitted to

select his own physician. Trammel Crow Co., Inc. v. Redmond, 12

Va. App. 610, 615, 405 S.E.2d 632, 635 (1991). The employer

denied Richards' claim. Richards was advised by Dr. Wattenmaker

to seek medical care in Texas. Consequently, Richards was free

to select his own physician. The commission did not err in

holding employer responsible for the cost of medical treatment

4 rendered to Richards in Texas.

For the reasons stated, we affirm the commission's decision.

Affirmed.