James D. Wagner v. Jett Mechanincal, Inc.

• Court: Court of Appeals of Virginia
• Decided: March 5, 1996
• Docket: 1844954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

JAMES D. WAGNER

v. Record No. 1844-95-4 MEMORANDUM OPINION * PER CURIAM JETT MECHANICAL, INC. MARCH 5, 1996 AND OHIO CASUALTY INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Jerry O. Talton, on brief), for appellant.

(Dawn E. Boyce; Trichilo, Bancroft, McGavin, Horvath & Judkins, on brief), for appellees.

James D. Wagner ("claimant") contends that the Workers'

Compensation Commission erred in granting the change in condition

application filed by Jett Mechanical, Inc. and its insurer

(hereinafter collectively referred to as "employer") and in

terminating his compensation benefits as of April 6, 1994.

Specifically, claimant argues that the commission should have

required employer to file a Petition to Vacate the September 29,

1993 award, on the basis of fraud, mutual mistake, or imposition.

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. "'Where . . . causal connection between an industrial

accident and disability has been established by . . . entry of an * Pursuant to Code § 17-116.010 this opinion is not designated for publication. award, an employer has a right to apply for termination of

benefits upon an allegation that the effects of the injury have

fully dissipated and the disability is the result of another

cause.'" Suite v. Clinchfield Coal Co., 8 Va. App. 554, 555, 383

S.E.2d 21, 22 (1989) (quoting Celanese Fibers Co. v. Johnson, 229

Va. 117, 120, 326 S.E.2d 687, 690 (1985)), aff'd on rehearing en

banc, 9 Va. App. 492, 389 S.E.2d 187 (1990).

In its April 8, 1994 change in condition application,

employer sought to terminate claimant's benefits on the basis

that his current disability was unrelated to his August 6, 1993

compensable injury by accident. Employer filed Dr. Ramon

Jenkins' February 24, 1994 report in support of its application.

Dr. Jenkins' February 24, 1994 report makes clear that,

although he accepted claimant's assertion of an electrical shock

accident occurring at work on August 6, 1993, he did not believe

that the consequences of that accident were severe enough to

result in ongoing disability. Thus, Dr. Jenkins concluded that

claimant had completely recovered from the August 6, 1993

industrial accident. In addition, Dr. Jenkins' testimony

revolved around his opinion that claimant's disability, if any,

as of February 24, 1994, was not related to his exposure to an

electrical shock on August 6, 1993. Dr. Jenkins' reports and testimony were sufficient to raise

the issue of lack of causal connection between the industrial

accident and claimant's continuing disability. Therefore, the

2 commission did not err in refusing to require employer to file a

Petition to Vacate the award, and in considering its change in

condition application on the merits using a preponderance of the

evidence standard, rather than a clear and convincing evidence

standard.

Because claimant did not appeal the commission's finding

that his current disability was unrelated to his compensable

industrial accident on its merits, we will not review this

finding on appeal. For the reasons stated, we affirm the commission's decision.

Affirmed.