Dan River, Inc. v. Sammy Terry

• Court: Court of Appeals of Virginia
• Decided: June 20, 2000
• Docket: 3020992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Frank Argued at Richmond, Virginia

DAN RIVER, INC. MEMORANDUM OPINION* BY v. Record No. 3020-99-2 JUDGE RUDOLPH BUMGARDNER, III JUNE 20, 2000 SAMMY TERRY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Martha White Medley (Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellant.

J. Gregory Webb (Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., on brief), for appellee.

Dan River, Inc. appeals an award of benefits to Sammy Terry

by the Workers' Compensation Commission. The employer argues

the commission erred in finding the employee established a

causal connection between the accident and injury, and in

finding he sustained his burden of proving a compensable injury

by accident. The employer argues that it is just as likely that

the employee's disabling condition was caused by his poorly

controlled diabetes as by his work-related injury. Finding no

error, we affirm.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. On appeal, we view the evidence, and all reasonable

inferences deducible therefrom, in the light most favorable to

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

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The

factual findings by the commission that are supported by

credible evidence are conclusive and binding upon this Court.

See Code § 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va.

App. 227, 229, 409 S.E.2d 824, 826 (1991).

The employee was a diabetic dependent on insulin for twenty

years. While working for the employer, he tripped on a 3 by 1/2

inch bolt that protruded from the floor. The employee noted his

great toe was sore but found nothing visibly wrong. He

inspected his foot again that evening and the next morning

before returning to work, but again he found nothing wrong. The

employee regularly checked his feet and two days later observed

a black spot on the underside of his toe. The employee went to

the emergency room and advised the nurse that his toe had been

red and swollen and he "possibly hit [his] foot." He was

admitted to the hospital.

The admitting doctor, Dr. Thomas M. Alabanza, diagnosed

cellulitis, a severe infection, of the left toe. The doctor

wrote the cellulitis seemed to stem from "what appears to be a

sore at the bottom of the big toe. . . . Patient has a sore at

the bottom of [his] toe where there might have been a break in

the skin." A bone scan revealed the employee had osteomyelitis,

- 2 - inflammation of the bone. Dr. Alabanza wrote: "it is highly

unlikely for cellulitis to develop without trauma or injury.

Diabetics are not at high risk of developing cellulitis without

trauma," and trauma "is a most common cause" of cellulitis.

Dr. Cesar S. Guanzon amputated the employee's left toe. He

noted that cellulitis could develop several days after blunt

trauma and that breaking the skin is not necessary for an

infection to develop because sometimes there is an "internal

break that you can't see right away." Dr. Guanzon stated that

diabetics were prone to develop infection after blunt trauma

more often than the general population. Dr. John Harrelson, who

treated the employee after the amputation, noted the employee

experienced "no other specific foot problems until Thanksgiving

Day 1997 when he struck his foot on an iron pipe at work and

developed an ulcer over the left great toe."

The employee must prove his injury was caused by the

work-related injury. See Westmoreland Coal Co. v. Russell, 31

Va. App. 16, 19-20, 520 S.E.2d 839, 840-41 (1999). "'The actual

determination of causation is a factual finding,' and '[t]he

testimony of a claimant may . . . be considered in determining

causation, especially where the medical evidence is

inconclusive.'" Russell Stover Candies v. Alexander, 30 Va.

App. 812, 826, 520 S.E.2d 404, 411 (1999) (citations omitted).

Where the evidence, or the reasonable inferences drawn

therefrom, support the commission's findings, they will not be

- 3 - disturbed on review, even though some evidence supports a

contrary finding. See id. at 825, 520 S.E.2d at 411.

The employee had no problems with his feet before he

tripped and hit his toe at work. At first, he did not notice

any problems, but evidence proved that cellulitis could develop

several days after blunt trauma and was unlikely to occur

without trauma. The evidence also showed that diabetics were

more prone than the general population to develop infection.

The record supports the commission's finding that the employee

injured his toe at work and his diabetes aggravated the injury

to the extent of requiring amputation. Diabetes affected the

employee's recovery from the injury, but diabetes did not cause

the condition.

The employer cites Kings Market v. Porter, 227 Va. 478, 317

S.E.2d 146 (1984), and argues that mere conjecture is not

sufficient to establish a causal connection between an initial

injury and a current disability. In Porter, the employee filed

a change in condition application thirteen years after the

initial injury. The application was supported by a doctor's

opinion that she was unable to work because of the changed

condition. The Supreme Court reversed the award of benefits

because there was no proof of a causal connection between the

changed condition and the work injury. See id. at 484, 317

S.E.2d at 149. The instant case does not entail linking a

changed condition with an earlier accident. To the contrary,

- 4 - the amputation occurred within two weeks of the injury, and

medical evidence established the causal connection. The record

supports the award of benefits. Accordingly, we affirm the

award of benefits.

Affirmed.

- 5 -