Marlowe Heating, etc v. Clifford R. Long
This text of Marlowe Heating, etc v. Clifford R. Long (Marlowe Heating, etc v. Clifford R. Long) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Annunziata
MARLOWE HEATING & AIR CONDITIONING AND TRANSCONTINENTAL INSURANCE COMPANY
v. Record No. 0719-95-4 MEMORANDUM OPINION * PER CURIAM CLIFFORD ROBERT LONG AUGUST 21, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Jonathan S. Rochkind; Law Offices of John W. Sheldon, on brief), for appellants. Appellants submitting on brief.
(Craig A. Brown; Ashcraft & Gerel, on brief), for appellee. Appellee submitting on brief.
Marlowe Heating & Air Conditioning and its insurer
(hereinafter collectively referred to as "employer") appeal from
a decision of the Workers' Compensation Commission ("commission")
awarding benefits to Clifford Robert Long ("claimant"). The
commission overruled the deputy commissioner's finding that
claimant's evidence failed to establish an injury by accident on
August 1, 1991, arising out of and in the course of his
employment. On appeal, employer contends that the commission
erroneously applied Board of Supervisors v. Martin, 3 Va. App. 139, 348 S.E.2d 540 (1986), as the basis for reversing the deputy
commissioner. We agree, reverse the commission's decision, and
remand the case for reconsideration in light of this opinion. 1 * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1 Because we reverse the commission's decision and remand, we will not address the issue raised by claimant on his cross- appeal, i.e., whether the commission erred in failing to award disability benefits from September 1, 1991 through January 15, 1992.
2 I. FACTS
Claimant was a steam fitter/foreman who worked for employer.
Claimant testified that on August 1, 1991, while working on a
project for employer at the Pentagon, he stepped on a loose tile,
causing him to fall and strike his right knee on a steel cross
bar. Claimant denied that he had injured his right knee before
August 1, 1991, but admitted that he had received medical
treatment for arthritis in his right knee before August 1, 1991. Claimant sought medical treatment on August 5, 1991, from
Dr. Thomas Fieldson, who noted right leg, hip, and ankle pain but
no specific diagnosis. Moreover, there was no indication in Dr.
Fieldson's August 5, 1991 notes that claimant gave any history of
a specific injury or accident.
On November 19, 1991, Dr. Neil A. Green, an orthopedic
surgeon, examined claimant. Dr. Green noted complaints of right
hip, thumb, and knee pain. There is no evidence in Dr. Green's
notes of an August 1, 1991 accident as described by claimant at
the hearing. Rather, Dr. Green indicated an accident date of
July 1, 1991. He also noted that, "[p]atient states no specific
incident of injury but has been followed by Dr. Fieldson for a
significant period of time concerning pain in his right
extremity."
On his December 3, 1991, December 10, 1991, and January 16,
1992 visits to Dr. Jeffrey H. Phillips, an orthopedic surgeon who
practices with Dr. Green, claimant did not give any history of a
3 specific work-related accident. In the caption to his notes, Dr.
Phillips referenced a July 1, 1991 date of accident. Not until
January 28, 1992, did Dr. Phillips note that "[Long] tells me now
that he hurt his knee when he fell at work. This is a new
history."
In his January 24, 1992 statement to an insurance
representative, claimant stated that the first time he
experienced right knee problems was on a job at Andrews Air Force
Base at the end of July 1991. Claimant stated that he fell over
a brace located in a trench and hurt his knee on that occasion.
He also stated that he aggravated the July 1991 knee injury while
on the Pentagon job approximately three days before he went to
the doctor on August 5, 1991. He asserted that this aggravation
occurred when he stepped on a loose tile and bumped his knee. Finally, claimant testified that he reported the August 1,
1991 accident to employer and that he filled out an accident
report two days later. Jean Marlowe, employer's vice-president,
investigated the claim and testified that no one at the company
had any knowledge of an alleged injury until December 1991, when
claimant called her concerning additional medical treatment.
Claimant filed a claim for workers' compensation benefits on
January 14, 1993. The deputy commissioner heard evidence and
ruled that, in light of the inconsistencies in the record,
claimant failed to prove an injury by accident. The deputy
specifically noted the following factors: (1) claimant made no
4 mention to anyone at work of the August 1, 1991 incident; (2)
claimant did not describe an injury by accident to Dr. Fieldson
on August 5, 1991; (3) claimant denied any specific injury when
he came under Dr. Green's care, who referenced a date of accident
of July 1, 1991; and (4) in his recorded statement, claimant
alleged that the onset of his knee pain occurred in a July 1991
accident in Maryland. The commission reversed the deputy's
ruling and awarded benefits from January 16, 1992 to February 23,
1992. The commission stated that it could not rely upon the
medical histories to determine how the accident occurred. II. CONSIDERATION OF MEDICAL HISTORIES
The commission was confronted with inconsistent and
incomplete accounts of when claimant sustained his knee injury.
It was within the commissions's discretion to consider this
evidence in adjudicating the claim.
The commission erroneously applied Martin. It gave no
weight to claimant's prior inconsistent and incomplete histories
given to his physicians. In McMurphy Coal Co. v. Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995), we held that under
common law rules of evidence, medical histories are admissible
substantively as party admissions. Thereafter, we recognized in
Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 S.E.2d
541 (1995), that, under Rule 2.2 of the Rules of the Virginia
Workers' Compensation Commission, the commission may consider
medical histories in determining how an accident occurred. Rule
5 2.2 gives the commission "'[t]he discretion to give probative
weight to hearsay statements in arriving at its findings of
fact.'" Id. at 319, 456 S.E.2d at 544 (quoting Williams v.
Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958)). As we
stated in Pence, "[t]he commission's broad statement [that it
could not rely on medical histories to determine how an accident
occurred] is contrary to the common law principles enunciated in
Martin, [Kane Plumbing, Inc. v.] Small, [7 Va. App. 132, 371
S.E.2d 828 (1988)] and Miller, [and] . . . is contrary to Rule
2.2 . . . ." Pence, 20 Va. App. at 319, 456 S.E.2d at 544.
"By failing to consider [the inconsistent and incomplete
medical histories], the commission ignored relevant evidence that
supported the appellants' position and, when coupled with other
evidence, this action may have affected the outcome of this
case." McMurphy, 20 Va. App. at 60, 455 S.E.2d at 267.
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