City of Richmond v. Kenneth W. Tucker

• Court: Court of Appeals of Virginia
• Decided: September 26, 2023
• Docket: 1207222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Causey and Senior Judge Haley UNPUBLISHED

CITY OF RICHMOND MEMORANDUM OPINION* BY v. Record No. 1207-22-2 JUDGE RANDOLPH A. BEALES SEPTEMBER 26, 2023 KENNETH W. TUCKER

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Laura K. Drewry, Deputy City Attorney; Richmond City Attorney’s Office, on brief), for appellant. Appellant submitting on brief.

(Kenneth Brent Jones; Corey R. Pollard; Jenkins, Block & Associates, PC, on brief), for appellee. Appellee submitting on brief.

The City of Richmond (“the City”) challenges the Virginia Workers’ Compensation

Commission’s (“the Commission”) finding that claimant Kenneth Tucker suffered an injury to his

back and spine as a result of an accident that occurred while Tucker was working for the City. The

City then argues that the Commission erred by “giving more weight to Dr. Crowl’s opinion and less

weight to Dr. Crane’s opinion.” The City also contends that the Commission erred by “not giving

deference to the credibility findings of the Deputy Commissioner.” Both parties have waived oral

argument on appeal. After reviewing the record and the briefs of the parties, we conclude that the

Commission did not err. Accordingly, we affirm the Commission’s judgment.

I. BACKGROUND

On appeal from a decision of the Commission, this Court views the evidence “in the light

most favorable to the party who prevailed before the Commission.” City of Newport News v.

* This opinion is not designated for publication. See Code § 17.1-413(A). Kahikina, 71 Va. App. 536, 539 (2020). Here, Tucker was the prevailing party before the

Commission.

The City employed Tucker as a maintenance specialist responsible for maintaining its

garbage trucks. On May 12, 2020, Tucker was installing a hydraulic cylinder into the back of a

garbage truck. Tucker stood inside the back of the garbage truck and attempted to guide the

hydraulic cylinder into position. As he was doing so, the hydraulic cylinder became wedged in the

back of the garbage truck. Tucker testified that, while he was trying to unwedge the hydraulic

cylinder, the cylinder “swung back because it was on the chain and it hit [him] in the shoulder,

threw [him] around and back up against the railing.” Tucker stated that his back hit the railing

“right across the top of [his] waist.”

Tucker felt pain in his shoulder, his back, and throughout his leg. Despite feeling the pain

after the impact, Tucker finished installing the hydraulic cylinder and then reported the incident to

his supervisor. Tucker stated that he felt “a little sore and stiff” when he woke up the next morning,

but he still went to work for the next several days. However, Tucker’s lower back pain continued to

worsen over the next week or two until “it got to the point where it was hurting all day.”

On June 1, 2020, Tucker visited Dr. Peter Crane, a physician who had previously treated

Tucker. According to Dr. Crane’s notes from June 1, 2020, Tucker told Dr. Crane that “[t]he pain

effects [sic] the lower back, both buttocks and radiates into the posterior thighs and posterior lateral

calves.” Tucker also “reported numbness in the big toe and in the soles of both feet.” In addition,

Tucker “reported pain in the right shoulder.” Dr. Crane noted that Tucker “currently rates his pain,

10/10.” Dr. Crane referred Tucker to an orthopedic specialist for his right shoulder pain and then

Dr. Crane ordered an MRI of his lumbar spine.

On June 8, 2020, Dr. Joseph Andriano examined Tucker’s shoulder and lower back. After

examining Tucker, Dr. Andriano wrote, “I cannot believe he [Tucker] was able to work this whole

-2- time in this state.” Dr. Andriano ordered an MRI of Tucker’s lumbar spine. Tucker did not return

to work after his appointment with Dr. Andriano.

Tucker then completed the MRI of his lumbar spine on June 11, 2020. The MRI showed

that Tucker had degenerative disc disease, disc herniation, arthritis, and severe central spinal

stenosis in his lower back. Dr. Andriano subsequently recommended that Tucker undergo a lumbar

decompression, and Dr. Andriano then referred Tucker to Dr. Adam Crowl for surgery.

On July 13, 2020, Tucker met with Dr. Crowl. Dr. Crowl reviewed the results of the June

11, 2020 MRI, and he found that Tucker had “severe central stenosis . . . as well as neural foraminal

stenosis.” Dr. Crowl then scheduled Tucker to undergo surgery on September 15, 2020. Tucker

returned to work on July 20, 2020, and he continued to work until his spinal surgery on September

15, 2020. Tucker subsequently returned to regular duty work on December 21, 2020.

Tucker filed a claim for benefits with the Commission seeking a lifetime medical award for

injuries to his back and spine as a result of the May 12, 2020 accident, as well as temporary total

disability benefits from September 15, 2020 to December 20, 2020.1 The City opposed the claim

and contended that Tucker’s back and spine issues pre-existed the accident. The City further argued

that Tucker was not entitled to temporary total disability benefits from September 15, 2020 to

December 20, 2020, because that period of disability related to his pre-existing conditions.

The case proceeded to a hearing before the deputy commissioner on October 28, 2021.

Tucker’s prior medical history was entered into evidence before the deputy commissioner. The

medical records show that Tucker had an MRI taken of his lumbar spine in 2016. The 2016 MRI

showed “multilevel degenerative disc disease,” “multilevel borderline mild spinal canal stenosis,”

1 Tucker also sought a lifetime medical award for the injury to his right shoulder and temporary total disability benefits from June 8, 2020 to July 20, 2020. The City stipulated that Tucker injured his right shoulder as a result of the accident and that he was entitled to temporary total disability benefits from June 8, 2020 to July 20, 2020 as related to his right shoulder. -3- and “mild left neuroforaminal narrowing.” After the 2016 MRI, Tucker met with Dr. Crane at least

once a year to monitor his lower back pain. During an October 22, 2019 appointment with

Dr. Crane (the final appointment before the May 12, 2020 incident), Tucker reported that he “had

stiff, achy pain in his lower back generally first thing in the morning,” but Tucker “denied having

any pain radiating down his legs.” Dr. Crane noted that, on October 22, 2019, Tucker “currently

rates his pain 0/10.” Tucker also testified that his previous back problems had been resolved before

May 2020. In addition, Tucker testified that he started having “spasms running down my leg” after

the May 12, 2020 incident and that he never experienced these leg spasms with his previous back

problem.

Tucker also introduced medical records for the treatment that he received after the May 12,

2020 incident. Notably, these records included a questionnaire completed by Dr. Crowl where

Dr. Crowl agreed that Tucker had suffered an injury to his back because of the May 12, 2020

incident. In addition, Dr. Crowl also agreed that “the injury in the May 2020 work-related incident

contributed to (aggravated, accelerated, exacerbated, worsened, or flared up) [Tucker’s] pre-existing

lumbar spine degenerative disc disease.” Dr. Crowl wrote that his opinions were based on “intake

notes from Dr. Andriano,” Tucker’s reports of “[r]ight shoulder pain” and “tingling in his . . . leg,”

and Dr. Andriano’s physical exam showing that Tucker “had severe loss of function due to pain in

his back.”

The City introduced a questionnaire completed by Dr. Crane. According to Dr. Crane’s

questionnaire responses, Dr. Crane found that Tucker’s 2020 MRI results differed from his previous

MRI results. However, Dr. Crane checked a line labeled “No” to the question that asked, “Do these

results show any physical/structural change(s) to his lumbar spine that weren’t present on MRIs

done prior to the incident of May 12, 2020?” Dr. Crane also checked “No” for the question that

asked, “In your professional opinion, did the accident of May 12, 2020 cause any physical or

-4- structural changes to the condition of Mr. Tucker’s low back?” In addition, Isaiah Manson,

Tucker’s supervisor in May 2020, testified that he wrote down that Tucker only reported a shoulder

injury as a result of the May 12, 2020 incident.

The deputy commissioner denied Tucker’s claim for benefits with respect to his back and

spine. The deputy commissioner reasoned that “we are not persuaded that we can rely upon

[Tucker’s] testimony as to the alleged change in his condition contemporaneous with the accident,

particularly given that . . . Mr. Manson did not document having had such reported to him as

resulting from the injury.” Tucker then appealed to the full Commission, which reversed the deputy

commissioner’s decision and found that Tucker “sustained a compensable injury by accident.” The

Commission found that Tucker reported new symptoms after the May 12, 2020 accident that did not

appear in the pre-existing medical records. In addition, the Commission relied on Dr. Crowl’s

assessment of Tucker because Dr. Crowl had reviewed the 2020 MRI of Tucker’s lumbar spine,

Dr. Crowl performed Tucker’s surgery, and then Dr. Crowl “opined that the work accident

accelerated and aggravated the claimant’s underlying condition.” The Commission then explained,

“Unlike the Deputy Commissioner, we give little weight to Dr. Crane’s questionnaire responses

stating, yes, there were changes between the two MRIs but no, there was no structural change from

the accident, as Dr. Crane offers no explanation for his opinion.” The Commission awarded Tucker

his requested medical and temporary total disability benefits. The City now appeals the award.

II. ANALYSIS

On appeal, the City argues that “[t]he Virginia Workers’ Compensation Commission erred,

as a matter of fact and law, in holding the claimant sustained a sudden mechanical or structural

change to his back and spine and the resulting disability.” The City also argues that the

Commission erred “in giving more weight to Dr. Crowl’s opinion and less weight to Dr. Crane’s

-5- opinion.” In addition, the City argues that the Commission erred “in not giving deference to the

credibility findings of the Deputy Commissioner.”

In order for an injury to be compensable under the Workers’ Compensation Act, “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.” City of Charlottesville v. Sclafani, 300 Va. 212, 221 (2021) (quoting Morris v.

Morris, 238 Va. 578, 589 (1989)). “The ‘structural or mechanical change’ is the injury, when it

‘produces harm or pain or a lessened facility of the natural use of any bodily activity or

capability.’” Alexandria City Pub. Schs. v. Handel, 299 Va. 191, 197 (2020) (quoting Snead v.

Harbaugh, 241 Va. 524, 528 (1991)).

“The [C]ommission’s determination regarding causation is a finding of fact.” Kahikina, 71

Va. App. at 545 (alteration in original) (quoting Farmington Country Club, Inc. v. Marshall, 47

Va. App. 15, 26 (2005)). “Decisions of the [C]ommission as to questions of fact are conclusive and

binding upon this Court if supported by credible evidence.” Id. (alteration in original) (quoting

United Airlines v. Hayes, 58 Va. App. 220, 238 (2011)). “In determining whether credible evidence

exists to support the [C]ommission’s findings of fact, ‘the appellate court does not retry the facts,

reweigh . . . the evidence, or make its own determination of the credibility of the witnesses.’” Id.

(alterations in original) (quoting Marshall, 47 Va. App. at 26-27). Instead, “we are bound by the

[C]ommission’s findings of fact as long as ‘there was credible evidence presented such that a

reasonable mind could conclude that the fact in issue was proved,’ even if there is evidence in

the record that would support a contrary finding.” Artis v. Ottenberg’s Bakers, Inc., 45 Va. App.

72, 83-84 (2005) (en banc) (quoting Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222

(1988)) (internal citations omitted). Where medical opinions conflict, “the [C]ommission [i]s

-6- free to decide which evidence [i]s more credible and should be weighed more heavily.”

Thompson v. Brenco, Inc., 38 Va. App. 617, 624 (2002).

In this case, there is credible evidence in the record that supports the Commission’s finding

that Tucker sustained a compensable injury to his back and spine as a result of the May 12, 2020

accident. Tucker testified that his past back-related issues resolved before the accident and that the

accident caused new symptoms, specifically Tucker had “spasms running down” his legs. As the

Commission observed, Dr. Crowl reviewed the 2020 MRI of Tucker’s lumbar spine, Dr. Crowl

performed surgery on Tucker, and Dr. Crowl then opined that the accident accelerated and

aggravated his pre-existing lumbar spine degenerative disc disease. In addition, Dr. Crane opined

that the results of the 2020 MRI of Tucker’s lumbar spine differed from the results of a previous

MRI of Tucker’s lumbar spine from 2016. Tucker’s testimony regarding his symptoms before and

after the accident, Dr. Crowl’s extensive involvement in Tucker’s medical treatment, Dr. Crowl’s

medical opinions on Tucker’s lower back, and Dr. Crane’s admission that Tucker’s 2020 MRI

differed from his previous MRI in 2016 all constitute credible evidence in the record that support

the Commission’s finding that Tucker sustained compensable injuries to his back and spine because

of the accident.2 Consequently, we cannot say that the Commission erred in finding that Tucker

suffered a lower back injury as a result of the May 12, 2020 accident. See Kahikina, 71 Va. App. at

545.

Furthermore, the Commission did not err by “not giving deference to the credibility findings

of the Deputy Commissioner.” The City argues, “Because there is no credible reason or articulated

2 The City separately argues that the Commission should have given greater weight to Dr. Crane’s opinion instead of Dr. Crowl’s opinion because Dr. Crane had reviewed both of Tucker’s MRIs. This Court, however, does not “reweigh . . . the evidence, or make its own determination of the credibility of the witnesses.” Kahikina, 71 Va. App. at 545 (alteration in original) (quoting Marshall, 47 Va. App. at 26-27). Consequently, we cannot say that the Commission erred by attributing greater weight to Dr. Crowl’s opinion than to Dr. Crane’s opinion. -7- reason to support the Commission’s finding, their finding should be reversed.” However, “if the

deputy commissioner’s determination of credibility is based on the substance of the testimony and

not upon the witness’ demeanor and appearance, such a finding is as determinable by the full

commission as by the deputy.” Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 383

(1987). “Absent a specific, recorded observation regarding the behavior, demeanor or appearance

of” a witness at a hearing before a deputy commissioner, “the [C]ommission had no duty to explain

its reasons for finding claimant more credible than” another witness. Bullion Hollow Enters. v.

Lane, 14 Va. App. 725, 729 (1992). Here, the deputy commissioner specifically wrote that “we are

not persuaded that we can rely upon [Tucker’s] testimony as to the alleged change in his condition

contemporaneous with the accident, particularly given that . . . Mr. Manson did not document

having had such reported to him as resulting from the injury.” Notably, the deputy commissioner

did not make any findings of credibility regarding Tucker’s or Manson’s appearance or demeanor as

either man testified. Given that the deputy commissioner’s credibility findings were based solely on

the substance of Tucker’s testimony and the substance of Manson’s testimony, as opposed to basing

her credibility findings on Tucker’s and Manson’s demeanor or appearance as they testified, the

Commission was not required to articulate a reason for reversing the deputy commissioner’s

credibility determinations. Consequently, we cannot say that the Commission erred by not

deferring to the deputy commissioner’s credibility findings.

III. CONCLUSION

For all of the foregoing reasons, we do not disturb the decision of the Workers’

Compensation Commission.

Affirmed.

-8-