Gail V Sorrell v. Chesapeake Bay Agency on Aging

• Court: Court of Appeals of Virginia
• Decided: November 19, 2002
• Docket: 2055022
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Agee and Senior Judge Coleman

GAIL V. SORRELL MEMORANDUM OPINION* v. Record No. 2055-02-2 PER CURIAM NOVEMBER 19, 2002 CHESAPEAKE BAY AGENCY ON AGING, INC. AND CINCINNATI INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Gail V. Sorrell, pro se, on brief).

(Calvin W. Fowler, Jr.; Williams Mullen, on brief), for appellees.

Gail V. Sorrell (claimant) contends the Workers'

Compensation Commission erred in finding that she failed to

prove a causal connection between her July 6, 2000 compensable

injury by accident and her disability from January 29, 2001 to

May 30, 2001. Upon reviewing the record and the parties'

briefs, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.

Rule 5A:27.

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).

Unless we can say as a matter of law that claimant's evidence

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. sustained her 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).

On July 6, 2000, claimant sustained a compensable injury by

accident when she was involved in a motor vehicle accident while

in the course of her employment. On that day, in the hospital

emergency room, claimant complained of right arm and shoulder

pain, as well as right thigh and iliac crest pain.

On July 11, 2000, claimant received follow-up treatment

from her family physician, Dr. Lisa Jenkins. Dr. Jenkins noted

that claimant sustained lower back pain and an arm contusion.

On July 21, 2000, claimant told Dr. Jenkins that other than some

stiffness in her arms at times, she had no complaints.

On November 6, 2000, claimant returned to Dr. Jenkins,

reporting that her right "arm never completely felt better."

Claimant indicated that her right forearm pain had worsened over

the previous three weeks. Dr. Jenkins noted that claimant

believed that her job of delivering meals, which required that

she lift the meals, had caused her right arm pain to return.

On November 21, 2000, Dr. Jenkins prescribed MRI studies of

claimant's cervical spine and right upper extremity. Those

studies showed small disc protrusions at the C4-5, C5-6, and

C6-7 levels, without significant cord deformity or compression.

The neck MRI was normal.

- 2 - On January 31, 2001, Dr. Jenkins examined claimant for

"follow-up of right arm pain from 11/21/00." Dr. Jenkins

reported that "[s]ince 1/26/01, pt. has had low back pain

radiating down her left hip. She drove a van at work which 'had

a low seat that caused [her] back pain on 1/26/01.'"

Dr. Jenkins excused claimant from work, and prescribed a whole

body bone scan and a lumbar spine MRI. After those studies were

performed, Dr. Jenkins referred claimant for an orthopedic

evaluation.

On March 15, 2001, Dr. Paul DiMartino, a spine surgeon,

evaluated claimant for "the complaint of spinal column pain."

Dr. DiMartino noted that claimant related the onset of her

symptoms to the July 2000 motor vehicle accident. Dr. DiMartino

noted that claimant returned to work two weeks after the July

2000 accident and worked until January 26, 2001, when the pain

became unbearable. Dr. DiMartino examined claimant and reviewed

the imaging studies. He concluded that "[n]o specific pathology

is noted."

On April 5, 2001, Dr. DiMartino examined claimant for her

"complaint of spinal column discomfort." He continued her

physical therapy and reported that she could not return to work.

On May 24, 2001, Dr. DiMartino reported that claimant's

symptoms had "relatively improved" when compared to previous

examinations. Dr. DiMartino released claimant to return to work

as of May 30, 2001. - 3 - On July 5, 2001, in response to a letter from claimant's

counsel, Dr. DiMartino indicated that he was not aware of any

injury for which he was treating claimant, other than the July

6, 2000 accident.

The medical records revealed that claimant was treated for

a whiplash-type neck injury on October 21, 1991, after a motor

vehicle accident. She also complained of low back and left knee

pain at that time. On April 5, 1994, claimant was treated

following another motor vehicle accident a day earlier. At that

time, claimant complained of pains radiating from her shoulder

to her hip. The emergency room physicians diagnosed acute

cervical, thoracic, and lumbar muscle problems. On March 26,

2000, claimant was treated in a hospital emergency room for

complaints of back and shoulder pain. On March 30, 2000,

Dr. Jenkins reported that this scapular back pain had resolved.

In her hearing testimony, claimant admitted that she may

have been involved in one or two motor vehicle accidents before

the July 6, 2000 accident. She admitted that these accidents

may have involved lower back, neck, and shoulder injuries. She

also admitted she sustained a muscle sprain to her back while

working for another employer in March 2000. She claimed that

the sprain had resolved by July 2000.

"Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

- 4 - Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991). As fact finder, the commission weighed

the medical evidence, and rejected the opinions of

Drs. DiMartino and Jenkins. In so ruling, the commission noted

that Dr. DiMartino was not fully informed of claimant's history

of similar past injuries. The record supports that finding.

Where a medical opinion is based upon an incomplete or

inaccurate medical history, the commission is entitled to

conclude that the opinion is of little probative value. See

Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d

15, 16 (1985). Furthermore, in rejecting Dr. Jenkins' opinions,

the commission noted that no evidence showed that claimant had

continuing and symptomatic problems since the July 6, 2000

accident, except for her hearing testimony. The commission

correctly noted that when claimant presented to Dr. Jenkins with

right forearm problems on November 6, 2000, she attributed her

symptoms to repeated lifting at work, and when she presented on

January 31, 2001, she attributed her most recent back symptoms

to a low seat in her vehicle some five days earlier. She did

not attribute either of these problems to the compensable July

6, 2000 motor vehicle accident.

Based upon this record, we cannot find as a matter of law

that claimant's evidence sustained her burden of proving that

her disability from January 29, 2001 through May 30, 2001 was

- 5 - causally connected to the July 6, 2000 compensable injury by

accident.

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

Affirmed.

- 6 -