COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank Argued at Salem, Virginia
GEORGE MONTGOMERY COOK MEMORANDUM OPINION * BY v. Record No. 2357-99-3 JUDGE SAM W. COLEMAN III APRIL 25, 2000 ISLAND CREEK COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
P. Heith Reynolds (Wolfe & Farmer, on brief), for appellant.
Michael F. Blair (Rebecca E. Wallace; Penn, Stuart & Eskridge, on brief), for appellee.
George M. Cook appeals the Workers' Compensation
Commission's decision denying his application for temporary total
disability benefits. Cook argues that the commission erred in
finding that his disability was not causally related to his
October 20, 1996 injury by accident. We disagree and affirm the
commission's decision.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to Island Creek Coal Company, the prevailing party. See R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). So viewed, the evidence proved that Cook was
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. employed by Island Creek Coal Company as an underground section
foreman. As part of his job duties, Cook would routinely walk
through the mines, which ranged in height from four and one-half
feet to six feet. On October 20, 1996, while Cook was walking
through an unfamiliar portion of the mine, he "misjudged" the
height of the roof line and hit his head on the roof. Cook
testified that the blow knocked him down and that he experienced
pain in his neck. He immediately reported the incident to his
supervisor.
Cook was treated on October 24, 1996 by Dr. Clinton H.
Sutherland, an internist. Cook reported left hand numbness and
neck pain. In Dr. Sutherland's office note dated October 24,
1996, he reported that Cook complained of experiencing similar
problems since an injury in 1992. Dr. Sutherland also noted
that Cook hit his head in a similar work-related injury in July
1996 and that he was treated by an emergency room physician four
to five weeks prior to the October 20, 1996 incident. In an
office note dated November 6, 1996, Dr. Sutherland reported that
Cook stated that "he rammed his head onto the roof, which he
states he has done on several occasions (including his report of
having done it in July of this year)."
In November 1996, Cook was referred to Dr. Matthew Wood,
Jr., a neurosurgeon. On November 27, 1996, Dr. Wood reported
that Cook complained of severe neck, left arm, and hand pain.
- 2 - Cook reported having this pain shortly after his October 20,
1996 accident. Dr. Wood also noted that Cook "denie[d] any
history of neck injury or spinal problems." In November 1996,
Cook underwent a cervical diskectomy to remove a large
multi-fragmented cervical disk at the C6-7 level. On February
12, 1997, Dr. Wood opined that "[b]ased on the patient's
consistent history, I must suspect that this injury is related
to his work." Dr. Wood also noted that Cook expressed concern
that although "he injured his neck at work; he was allegedly
talked into not putting it on compensation; and now he feels he
should have." On March 12, 1997, Dr. Wood stated that Cook "is
still contesting of his compensation claim. Again, based upon
his history, it appears that he was injured at work; and we
reviewed the history of his injury again in the office today."
Dr. Wood stated that Cook may return to work "whenever he feels
up to it." Cook returned to work on April 2, 1997.
Cook initially began treatment with Dr. Sutherland on
March 20, 1996, at which time he reported that he had lower back
pain, arm and shoulder pain, numbness and "tingling" in his
fingers, and pain in his hands when gripping. In May 1996, Cook
again complained of lower back pain emanating from a
work-related back injury in 1992. The treating physician opined
that Cook suffers from chronic right lumbar radicular syndrome.
- 3 - At the hearing, Cook admitted that he was seen by an
emergency room physician on September 8, 1996 for neck and left
arm pain. The emergency room records reflect Cook stated that
he hit his head two weeks prior to September 8, 1996 and that he
continues to experience neck and shoulder pain. At the hearing,
Cook denied having previous problems with his neck or receiving
treatment for neck pain "in that location prior to the incident."
He admitted, however, that he has had "sprains and strains" in
that area.
Cook filed an application seeking temporary total disability
benefits from October 21, 1996 through April 1, 1997. The
commission denied the application, finding that Cook suffered a
compensable injury by accident when he hit his head but that he
failed to prove the disability to his neck was causally related to
the accident.
ANALYSIS
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). "In
determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App.
- 4 - 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted). On
appellate review, it is not sufficient for a claimant to prevail
by merely demonstrating that the fact finder could have found
that the disability was causally related to the accident.
Unless we can say that Cook's evidence proved or established
causation as a matter of law, the commission's factual findings,
including causation, are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
In disregarding Dr. Wood's opinion on causation, the
commission found that Dr. Wood's records indicate that he was
unaware of Cook's prior history of neck and shoulder complaints.
The commission stated that:
[t]he histories of the prior accidents and medical treatment are indispensable to a considered opinion on the relationship between Dr. Wood's treatment and the October 1996 accident. Since Dr. Wood did not have important information which could clearly influence his opinion, his opinion on causation does not have a reliable foundation.
The commission also found Dr. Sutherland's opinion regarding
causation unpersuasive because Dr. Sutherland "basically adopted
Dr. Wood's opinion and has not explained the inconsistencies in
his own record." Additionally, the commission found that Cook's
testimony was inconsistent with the medical records.
- 5 - "Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). Here, the commission, after weighing the
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank Argued at Salem, Virginia
GEORGE MONTGOMERY COOK MEMORANDUM OPINION * BY v. Record No. 2357-99-3 JUDGE SAM W. COLEMAN III APRIL 25, 2000 ISLAND CREEK COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
P. Heith Reynolds (Wolfe & Farmer, on brief), for appellant.
Michael F. Blair (Rebecca E. Wallace; Penn, Stuart & Eskridge, on brief), for appellee.
George M. Cook appeals the Workers' Compensation
Commission's decision denying his application for temporary total
disability benefits. Cook argues that the commission erred in
finding that his disability was not causally related to his
October 20, 1996 injury by accident. We disagree and affirm the
commission's decision.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to Island Creek Coal Company, the prevailing party. See R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). So viewed, the evidence proved that Cook was
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. employed by Island Creek Coal Company as an underground section
foreman. As part of his job duties, Cook would routinely walk
through the mines, which ranged in height from four and one-half
feet to six feet. On October 20, 1996, while Cook was walking
through an unfamiliar portion of the mine, he "misjudged" the
height of the roof line and hit his head on the roof. Cook
testified that the blow knocked him down and that he experienced
pain in his neck. He immediately reported the incident to his
supervisor.
Cook was treated on October 24, 1996 by Dr. Clinton H.
Sutherland, an internist. Cook reported left hand numbness and
neck pain. In Dr. Sutherland's office note dated October 24,
1996, he reported that Cook complained of experiencing similar
problems since an injury in 1992. Dr. Sutherland also noted
that Cook hit his head in a similar work-related injury in July
1996 and that he was treated by an emergency room physician four
to five weeks prior to the October 20, 1996 incident. In an
office note dated November 6, 1996, Dr. Sutherland reported that
Cook stated that "he rammed his head onto the roof, which he
states he has done on several occasions (including his report of
having done it in July of this year)."
In November 1996, Cook was referred to Dr. Matthew Wood,
Jr., a neurosurgeon. On November 27, 1996, Dr. Wood reported
that Cook complained of severe neck, left arm, and hand pain.
- 2 - Cook reported having this pain shortly after his October 20,
1996 accident. Dr. Wood also noted that Cook "denie[d] any
history of neck injury or spinal problems." In November 1996,
Cook underwent a cervical diskectomy to remove a large
multi-fragmented cervical disk at the C6-7 level. On February
12, 1997, Dr. Wood opined that "[b]ased on the patient's
consistent history, I must suspect that this injury is related
to his work." Dr. Wood also noted that Cook expressed concern
that although "he injured his neck at work; he was allegedly
talked into not putting it on compensation; and now he feels he
should have." On March 12, 1997, Dr. Wood stated that Cook "is
still contesting of his compensation claim. Again, based upon
his history, it appears that he was injured at work; and we
reviewed the history of his injury again in the office today."
Dr. Wood stated that Cook may return to work "whenever he feels
up to it." Cook returned to work on April 2, 1997.
Cook initially began treatment with Dr. Sutherland on
March 20, 1996, at which time he reported that he had lower back
pain, arm and shoulder pain, numbness and "tingling" in his
fingers, and pain in his hands when gripping. In May 1996, Cook
again complained of lower back pain emanating from a
work-related back injury in 1992. The treating physician opined
that Cook suffers from chronic right lumbar radicular syndrome.
- 3 - At the hearing, Cook admitted that he was seen by an
emergency room physician on September 8, 1996 for neck and left
arm pain. The emergency room records reflect Cook stated that
he hit his head two weeks prior to September 8, 1996 and that he
continues to experience neck and shoulder pain. At the hearing,
Cook denied having previous problems with his neck or receiving
treatment for neck pain "in that location prior to the incident."
He admitted, however, that he has had "sprains and strains" in
that area.
Cook filed an application seeking temporary total disability
benefits from October 21, 1996 through April 1, 1997. The
commission denied the application, finding that Cook suffered a
compensable injury by accident when he hit his head but that he
failed to prove the disability to his neck was causally related to
the accident.
ANALYSIS
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). "In
determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App.
- 4 - 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted). On
appellate review, it is not sufficient for a claimant to prevail
by merely demonstrating that the fact finder could have found
that the disability was causally related to the accident.
Unless we can say that Cook's evidence proved or established
causation as a matter of law, the commission's factual findings,
including causation, are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
In disregarding Dr. Wood's opinion on causation, the
commission found that Dr. Wood's records indicate that he was
unaware of Cook's prior history of neck and shoulder complaints.
The commission stated that:
[t]he histories of the prior accidents and medical treatment are indispensable to a considered opinion on the relationship between Dr. Wood's treatment and the October 1996 accident. Since Dr. Wood did not have important information which could clearly influence his opinion, his opinion on causation does not have a reliable foundation.
The commission also found Dr. Sutherland's opinion regarding
causation unpersuasive because Dr. Sutherland "basically adopted
Dr. Wood's opinion and has not explained the inconsistencies in
his own record." Additionally, the commission found that Cook's
testimony was inconsistent with the medical records.
- 5 - "Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). Here, the commission, after weighing the
medical evidence, rejected the opinions of Drs. Wood and
Sutherland. The record established that Dr. Wood was not aware of
Cook's prior complaints of neck and shoulder pain and resultant
medical treatment which occurred during the weeks prior to the
October 20, 1996 injury by accident. In addition, Dr. Wood was
not aware of Cook's July 1996 accident, where he hit his head and
complained of neck pain that did not resolve. Contrary to Cook's
suggestion, the record does not show that Dr. Wood reviewed or had
access to Dr. Sutherland's records.
Moreover, Dr. Sutherland's February 17, 1997 office note, in
which he opines that the October 20, 1996 accident, rather than
the September 9, 1996 accident, "seems" to be the cause of the
cervical disk rupture, was equivocal. In that note he merely
agreed with Dr. Wood's unfounded and unexplained opinion regarding
causation. Dr. Sutherland did not explain the significance of his
October 24, 1996 office note in which he referenced Cook's July
1996 accident that resulted in neck pain that did not resolve
before the October 20, 1996 accident. Additionally, Dr.
Sutherland did not explain the significance of Cook's visit to the
emergency room just weeks before October 20, 1996, where he
- 6 - presented with similar symptoms. Where medical opinions are based
upon an incomplete or inaccurate medical history, the commission
is entitled to conclude that those opinions are of little
probative value. See Clinchfield Coal Co. v. Bowman, 229 Va. 249,
251-52, 329 S.E.2d 15, 16 (1985); see also Sneed v. Morengo, Inc.,
19 Va. App. 199, 205, 450 S.E.2d 167, 171 (1994) ("Whenever a
physician's diagnosis flows from an assumption that rests upon a
faulty premise, such as misinformation provided by a claimant, the
commission may refuse, and often will be required to refuse, to
attribute any weight to that opinion.").
Accordingly, we cannot find that the claimant's evidence
proved that the disability to his neck was causally related as a
matter of law to the October 20, 1996 accident in which he struck
his head on the roof of the mine. We affirm the commission's
decision.
Affirmed.
- 7 -