Home Entertainment Video v. Karen L. Toombs

• Court: Court of Appeals of Virginia
• Decided: December 9, 1997
• Docket: 1394972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Annunziata Argued at Richmond, Virginia

HOME ENTERTAINMENT VIDEO AND NATIONWIDE MUTUAL INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 1394-97-2 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 9, 1997 KAREN L. TOOMBS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION William F. Karn (William B. Pierce, Jr.; Pierce & Howard, P.C., on brief), for appellants.

No brief or argument for appellee.

Home Entertainment Video (employer) and its insurer appeal

the decision of the full commission awarding benefits to Karen L.

Toombs (claimant) on the basis that claimant's injury is not

causally related to her compensable accident. Finding no error

in the commission's decision, we affirm.

Claimant's injury in this case arose while shoveling snow at

her place of employment on February 2, 1996. As she tried to

lift the snow-filled shovel, she experienced a pain in her back.

She was examined several days later by orthopaedic surgeon,

Dr. Jeffrey K. Wilson, who diagnosed a lumbar strain. Claimant

had previously sought treatment for back pain from Dr. Wilson in

August 1993. In his record of the August 1993 visit, Dr. Wilson

states that he had seen claimant in 1990, "at which time she had * Pursuant to Code § 17-116.010 this opinion is not designated for publication. a mild right I5 radiculopathy and spondylolysis 1 at the L5-S1

level" but no other significant abnormality.

In conjunction with the February 1996 injury, claimant was

treated with an epidural steroid injection on April 16, 1996 to

resolve pain which had persisted since the accident.

Subsequently, Dr. Wilson described claimant's spondylolisthesis

as "chronically symptomatic," and referred claimant to Dr. David

C. Urquia, another orthopedic surgeon. Subsequent to his diagnosis that claimant suffered from

pars defects and spondylolisthesis, Dr. Urquia performed fusion

surgery on June 14, 1996. Dr. Urquia stated that the lumbar

strain, which the claimant suffered as a result of her accident,

had resolved by April 16, 1996. In his opinion, the claimant's

continuing pain resulted from either chronic wear and tear or a

congenital condition and he considered it "very unlikely that

minor trauma such as a back strain from shovelling snow would

have produced bilateral pars defects."

Claimant returned to work on August 29, 1996. On September

5, 1996, she filed a claim for benefits for the period June 14,

1996 to August 28, 1996. The deputy commissioner issued an

opinion in which he denied claimant's claim for benefits, 1 "Spondylolysis" is defined as "dissolution of a vertebra." Dorland's Illustrated Medical Dictionary 1563 (1994). "Spondylolisthesis" is defined as "forward displacement (olisthy) of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis." Id.

2 concluding that "the claimant's pre-existing back condition,

rather than any aggravation of it by her accident[,] was the

cause of claimant's medical problems and disability after April

16, 1996." On May 28, 1997, the full commission reversed the

decision of the deputy commissioner. It is from this decision

that employer appeals.

On appellate review, we view the evidence in the light most

favorable to the party prevailing below. Brown v. Tidewater Constr. Corp., 19 Va. App. 676, 677, 454 S.E.2d 42, 42 (1995)

(citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212,

390 S.E.2d 788, 788 (1990)). Generally, "'[t]he actual

determination of causation is a factual finding that will not be

disturbed on appeal if there is credible evidence to support the

finding.'" CLC Constr., Inc. v. Lopez, 20 Va. App. 258, 265, 456

S.E.2d 155, 158 (1995) (quoting Ingersoll-Rand Co. v. Musick, 7

Va. App. 684, 688, 376 S.E.2d 814, 817 (1989)).

It is firmly established in Virginia law that "the employer

takes the employee as the employer finds the employee, even where

the employee suffers some physical infirmity." Williams Indus.,

Inc. v. Wagoner, 24 Va. App. 181, 187-88, 480 S.E.2d 788, 791

(1997) (citing Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373

S.E.2d 725, 726 (1988)). Following this axiom, the Virginia

Supreme Court has held that an injury which aggravates or

accelerates a pre-existing condition is compensable. Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555

3 (1985).

In evaluating the sufficiency of the evidence to support the

commission's finding, we must determine whether the evidence

establishes more than a "purely theoretical possibility of

aggravation and causal connection." Eccon Constr. Co. v. Lucas,

221 Va. 786, 790, 273 S.E.2d 797, 799 (1981). "If it is just as

likely that the disabling condition resulted from a cause which

is not compensable as it is that it resulted from an accident

covered by the Worker's Compensation Act, the employee has failed

to establish the requisite causal connection." King's Market v.

Porter, 227 Va. 478, 484, 317 S.E.2d 146, 149 (1984) (citing

Carter v. Hercules Powder Co., 182 Va. 282, 288, 28 S.E.2d 736,

738 (1944)). In other words, the claimant must establish

causality by a preponderance of the evidence.

The finder of fact may determine what weight to assign to

expert opinion, even if that opinion is uncontradicted. Street

v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en banc) (citing Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986)). Furthermore, "causation between an

injury and a disability need not be established by the testimony

of a medical expert." Turcios v. Holiday Inn Fair Oaks, 24 Va.

App. 509, 517, 483 S.E.2d 502, 506 (1997) (citing Dollar General

Store v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 154-55

(1996)).

Applying these principles, we find that the commission's

4 finding of causation is supported by the evidence. While the

medical records from 1993 indicate that claimant had

"spondylolysis at the L5-S1 level" and degeneration of the L5-S1

disc with central bulging, as the commission noted, no evidence

showed that claimant's back problems caused her any work

disability prior to her accident. Furthermore, claimant had not

been treated for back pain from 1993 to the time of the accident.

After the February 2, 1996 accident, Dr. Wilson diagnosed her

problem as lumbar strain. Dr. Urquia also recognized that, while

claimant had "a chronic history of symptoms, . . . the last three

months have been worsening [in] pain." Based on claimant's testimony, and the medical records from

1993 as well as those related to the accident, the commission

reasoned that claimant did not have significant back pain until

the accident, when more serious back pain developed and concluded

that "this is one of those rare and unusual cases alluded to by

Dr. Urquia" where shovelling snow had caused a more serious back

injury "superimposed upon a pre-existing condition." The

credible evidence supports the commission's finding that

claimant's compensable accident aggravated claimant's

pre-existing back condition, causing claimant chronic back pain,

and we affirm.

Affirmed.