David Allen Artrip v. Kerns Bakeries, Inc.

• Court: Court of Appeals of Virginia
• Decided: December 10, 1996
• Docket: 1370963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

DAVID ALLEN ARTRIP MEMORANDUM OPINION * v. Record No. 1370-96-3 PER CURIAM DECEMBER 10, 1996 KERNS BAKERIES, INC. AND THE HOME INDEMNITY COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Gerald F. Sharp; Browning, Lamie & Sharp, on brief), for appellant.

(L. Johnson Sarber, III; Johnson, Ayers & Matthews, on brief), for appellees.

David Allen Artrip ("claimant") contends that the Workers'

Compensation Commission erred in finding that (1) his September

18, 1992 automobile accident caused a significant exacerbation of

his compensable July 13, 1992 back injury; and (2) his settlement

of the third-party action related to the automobile accident

without the knowledge of Kerns Bakeries, Inc. ("employer")

adversely affected employer's subrogation rights, thereby barring

claimant from receiving further compensation benefits. 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.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.

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).

Factual findings made by 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).

So viewed, the evidence established that on July 13, 1992,

claimant sustained a compensable back injury as the result of a

fall at work. On August 19, 1992, Dr. Timothy G. McGarry, an

orthopedist, diagnosed claimant as suffering from lumbosacral

pain. A CT myelogram ordered by Dr. McGarry showed evidence of a

right-sided L5-S1 disc herniation. On August 28, 1992, after

discussing treatment options with Dr. McGarry, claimant chose to

continue with conservative treatment rather than undergo surgery.

On September 18, 1992, claimant was involved in a non-work-related automobile accident. On September 25, 1992,

Dr. McGarry examined claimant and noted that claimant "was doing

better, but was then involved in a motor vehicle accident last

Friday when he had acute exacerbation of his pain again." On

September 25, 1992, claimant began complaining of left leg pain

and cramping in both legs. He had not exhibited these symptoms

prior to the automobile accident. In a letter dated September

25, 1992 from Dr. McGarry to Dr. Galen Smith, Dr. McGarry wrote

that claimant had suffered from increased back pain since the

2 automobile accident. On October 16, 1992, Dr. McGarry again

noted that claimant "now has problems on his left side. He

reports pain in his left side with radiating pain down to his

knee."

On December 3, 1992, Dr. Neal A. Jewell, an orthopedic

surgeon, examined claimant and diagnosed a moderately large

central-to-right L5-S1 herniated disc. Claimant's condition

continued to worsen and, on June 7, 1993, Dr. Jewell performed

surgery on claimant's back. On December 15, 1995, in response to

questions posed by claimant's counsel, Dr. McGarry opined that

the automobile accident had not adversely effected claimant's

physical condition nor impeded his natural recovery from the

work-related injury. The commission ruled that the August 18, 1992 automobile

accident caused a significant exacerbation of claimant's

compensable back injury. In so ruling, the commission relied

primarily upon the findings of Drs. McGarry and Jewell. The

notations made by these physicians contemporaneous with their

examinations provide credible evidence to support the

commission's finding. Moreover, the commission, in its role as

fact finder, was entitled to give more weight to Dr. McGarry's

earlier notes than to his December 1995 response to claimant's

counsel's question. "Medical evidence is not necessarily

conclusive, but is subject to the commission's consideration and

weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App.

3 675, 677, 401 S.E.2d 213, 215 (1991). Because credible evidence

supports the commission's finding that the August 18, 1992

automobile accident caused a significant exacerbation of

claimant's compensable July 13, 1992 back injury, it is binding

upon this Court.

II.

Code § 65.2-309(A) provides that "[a] claim against an

employer . . . shall operate as an assignment to the employer of

any right to recover damages which the injured employee . . . may

have against any other party . . . , and such employer shall be

subrogated to any such right . . . ." In applying this statute,

we held that "the employee may not pursue his common law remedy

in such a manner or settle his claim to the prejudice of the

employer's subrogation right and thereafter continue to receive

workers' compensation benefits." Wood v. Caudle-Hyatt, Inc., 18

Va. App. 391, 397, 444 S.E.2d 3, 7 (1994). Furthermore, we

stated: An employee necessarily prejudices his employer's subrogation rights and, thus, is barred from obtaining or continuing to receive benefits under a Workers' Compensation Award when an employee settles a third-party tort claim without notice, or without making a claim for workers' compensation benefits, or without obtaining the consent of the employer.

Id. (citing Stone v. George W. Helme Co., 184 Va. 1051, 1060, 37

S.E.2d 70, 75 (1946)). This rule applies whether the third party

tort feasor causes the original compensable injury or a later

4 aggravation of that injury. Barnes v. Wise Fashions, 16 Va. App.

108, 111, 428 S.E.2d 301, 302 (1993). 1

Claimant admitted that, after receiving compensation

payments for nine and one-half weeks out of a possible 500 weeks,

he settled the third-party claim related to the injuries he

sustained in the automobile accident without employer's knowledge

and consent. This evidence supports the commission's finding

that claimant's actions clearly prejudiced employer.

Accordingly, the commission did not err in terminating claimant's

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

Affirmed.

1 In City of Newport News v. Blankenship, 10 Va. App. 704, 707, 396 S.E.2d 145, 146-47 (1990), we held that compensation benefits would not be terminated where the exacerbation of the compensable injury was so minor that the settlement of a third-party claim related to the exacerbation did not prejudice the employer. Because we find that credible evidence supports the commission's finding that the August 18, 1992 automobile accident caused a significant exacerbation of claimant's compensable back injury, the rule enunciated in Blankenship does not apply to this case.