COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder Argued at Richmond, Virginia
MARY WASHINGTON HOSPITAL AND THE VIRGINIA INSURANCE RECIPROCAL MEMORANDUM OPINION* BY v. Record No. 1582-98-2 JUDGE LARRY G. ELDER MARCH 30, 1999 PATRICIA B. HOLLOWAY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Andrea L. Bailey (Crews & Hancock, P.L.C., on briefs), for appellants.
Leila H. Kilgore (Benjamin M. Smith, Jr.; Kilgore & Smith, on brief), for appellee.
Mary Washington Hospital and the Virginia Insurance
Reciprocal (hereinafter collectively employer) appeal from a
decision of the Virginia Workers' Compensation Commission
(commission) denying employer's application, based on an alleged
change in condition, to terminate compensation benefits payable
to Patricia B. Holloway (claimant). Employer contends no
credible evidence supported the commission's decision that
employer failed to meet its burden of proving claimant's ongoing
disability was not causally related to her compensable injury of
September 7, 1994. For the reasons that follow, we disagree and
affirm the ruling of the commission.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
FACTS
On September 7, 1994, while working as a nurse for employer,
claimant sustained a compensable injury to her back while moving
a patient from a stretcher to a bed. Claimant received treatment
for her injury from Andre Eglevsky, Jr., an orthopedic surgeon
from employer's panel of physicians. Dr. Eglevsky diagnosed her
as having a "lumbo-sacral spine sprain," which he attributed to
her lifting a patient on September 7, 1994. Employer accepted
the claim as compensable, and the commission entered an award for
various periods of disability. Claimant was temporarily and
totally disabled from the date of the accident through
December 12, 1994, and temporarily and partially disabled at
varying rates thereafter.
Dr. Eglevsky treated claimant for her injury continuously
from 1994 to 1997, during which time claimant reported ongoing
chronic pain. Multiple MRIs revealed that claimant had two
herniated disks, but neither Eglevsky nor a neurosurgeon to whom
Eglevsky referred claimant believed that the disks were the
source of her problems. Whether Eglevsky believed these
herniations could have resulted from claimant's 1994 injury is
unclear.
During the course of his treatment, Dr. Eglevsky noted that
claimant had received a diagnosis of fibromyalgia prior to her
1994 injury, and he opined that her fibromyalgia played a greater
role in her inability to return to full-duty employment than did
her mechanical back problem. However, Eglevsky noted the
- 2 - contrary opinion of a rheumatologist, who believed that
claimant's mechanical back problem was responsible for her pain
and that "the back problem is fanning the fibromyalgia."
In September 1996, Dr. Eglevsky opined that claimant was in
a "[chronic] pain pattern, the pain emanating from fibromyalgia,
chronic muscular pain, etc.," that "there [was] [no] simple
solution to her problem," and that he did not "foresee any
dramatic increase in her work capacity."
After examining claimant on October 9, 1997, Dr. Eglevsky
reported that "it's not really clear what the source of
[claimant's chronic pain problem] is; that is, it could be
related to her chronic myofascial pain; it may be related to scar
tissue in her back or just a chronic muscular problem."
By letter of November 6, 1997, however, less than a month
later, and without further examining claimant, Dr. Eglevsky
opined as follows:
After treating [claimant] for several years and after evaluating her various tests, her various second opinions, and watching the course of her treatment, I have concluded that her present pain is not related to her accident of September 7, 1994. She is suffering from a chronic pain problem that stems from her fibromyalgia. I feel that this is a pre-existing condition and is not related to her industrial accident of September 7, 1994.
In an office note of November 11, 1997, Eglevsky noted that he
based his opinion on the duration of claimant's problem, the lack
of objective findings, the fact that no physician who had
examined her felt she had a surgical lesion, and the fact that
all attempts at treatment had failed.
- 3 - By letter of November 25, 1997, employer moved to terminate
claimant's benefits based on Dr. Eglevsky's November 6, 1997
report, that claimant's ongoing disability was not causally
related to her 1994 injury.
In opposing employer's change-in-condition application,
claimant presented the medical records of Dale Pcsolyar, a
neurologist whom claimant apparently saw on referral from her
personal internist. On November 13, 1997, Dr. Pcsolyar noted
that claimant's pain could be "strictly myofascial pain, may be
piriformis syndrome." He also said he could not "rule out
sacroiliac joint pain referral, facet joint pain referral [or]
. . . internal disk disruption" but that he did not think it was
neuropathic in origin. Finally, he said, "[g]iven her widespread
musculoskeletal pain, [he] would like to look for . . . causes
other than fibromyalgia." Dr. Pcsolyar reviewed claimant's most
recent MRI, and on December 11, 1997, he recommended a
"Somatosensory Evoked Potential" or "SSEP to rule out
radiculopathy in which case this would of course implicate the
degenerated disk disease affecting nerve roots causing her pain
syndrome." He noted that "if the SSEP is abnormal, then only
nerve root impingement either through the piriformis or from the
disk would account for such an abnormality." The results from
the "left sural SSEP" were abnormal, which Pcsolyar said "could
be indicative of an abnormality between the point of stimulation
to the S1 lumbar nerve root and could be seen in an S1
radiculopathy on the left."
- 4 - II.
ANALYSIS
"In an application for review of an award on the ground of a
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence." Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423
S.E.2d 214, 216 (1992) (citation omitted). Factual findings made
by the commission in reviewing the employer's change-in-condition
application are "conclusive and binding on the appellate court if
based on credible evidence." Jules Hairstylists, Inc. v.
Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985). In
determining whether credible evidence exists, we view the
evidence in the light most favorable to the prevailing party.
See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). This Court does not "'retry the facts,
reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses.'" Falls
Church Constr. Corp. v. Valle, 21 Va. App. 351, 359, 464 S.E.2d
517, 522 (1995) (citation omitted). Although the opinion of the
treating physician is entitled to great weight, see Pilot Freight Carriers v. Reeves, 1 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder Argued at Richmond, Virginia
MARY WASHINGTON HOSPITAL AND THE VIRGINIA INSURANCE RECIPROCAL MEMORANDUM OPINION* BY v. Record No. 1582-98-2 JUDGE LARRY G. ELDER MARCH 30, 1999 PATRICIA B. HOLLOWAY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Andrea L. Bailey (Crews & Hancock, P.L.C., on briefs), for appellants.
Leila H. Kilgore (Benjamin M. Smith, Jr.; Kilgore & Smith, on brief), for appellee.
Mary Washington Hospital and the Virginia Insurance
Reciprocal (hereinafter collectively employer) appeal from a
decision of the Virginia Workers' Compensation Commission
(commission) denying employer's application, based on an alleged
change in condition, to terminate compensation benefits payable
to Patricia B. Holloway (claimant). Employer contends no
credible evidence supported the commission's decision that
employer failed to meet its burden of proving claimant's ongoing
disability was not causally related to her compensable injury of
September 7, 1994. For the reasons that follow, we disagree and
affirm the ruling of the commission.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
FACTS
On September 7, 1994, while working as a nurse for employer,
claimant sustained a compensable injury to her back while moving
a patient from a stretcher to a bed. Claimant received treatment
for her injury from Andre Eglevsky, Jr., an orthopedic surgeon
from employer's panel of physicians. Dr. Eglevsky diagnosed her
as having a "lumbo-sacral spine sprain," which he attributed to
her lifting a patient on September 7, 1994. Employer accepted
the claim as compensable, and the commission entered an award for
various periods of disability. Claimant was temporarily and
totally disabled from the date of the accident through
December 12, 1994, and temporarily and partially disabled at
varying rates thereafter.
Dr. Eglevsky treated claimant for her injury continuously
from 1994 to 1997, during which time claimant reported ongoing
chronic pain. Multiple MRIs revealed that claimant had two
herniated disks, but neither Eglevsky nor a neurosurgeon to whom
Eglevsky referred claimant believed that the disks were the
source of her problems. Whether Eglevsky believed these
herniations could have resulted from claimant's 1994 injury is
unclear.
During the course of his treatment, Dr. Eglevsky noted that
claimant had received a diagnosis of fibromyalgia prior to her
1994 injury, and he opined that her fibromyalgia played a greater
role in her inability to return to full-duty employment than did
her mechanical back problem. However, Eglevsky noted the
- 2 - contrary opinion of a rheumatologist, who believed that
claimant's mechanical back problem was responsible for her pain
and that "the back problem is fanning the fibromyalgia."
In September 1996, Dr. Eglevsky opined that claimant was in
a "[chronic] pain pattern, the pain emanating from fibromyalgia,
chronic muscular pain, etc.," that "there [was] [no] simple
solution to her problem," and that he did not "foresee any
dramatic increase in her work capacity."
After examining claimant on October 9, 1997, Dr. Eglevsky
reported that "it's not really clear what the source of
[claimant's chronic pain problem] is; that is, it could be
related to her chronic myofascial pain; it may be related to scar
tissue in her back or just a chronic muscular problem."
By letter of November 6, 1997, however, less than a month
later, and without further examining claimant, Dr. Eglevsky
opined as follows:
After treating [claimant] for several years and after evaluating her various tests, her various second opinions, and watching the course of her treatment, I have concluded that her present pain is not related to her accident of September 7, 1994. She is suffering from a chronic pain problem that stems from her fibromyalgia. I feel that this is a pre-existing condition and is not related to her industrial accident of September 7, 1994.
In an office note of November 11, 1997, Eglevsky noted that he
based his opinion on the duration of claimant's problem, the lack
of objective findings, the fact that no physician who had
examined her felt she had a surgical lesion, and the fact that
all attempts at treatment had failed.
- 3 - By letter of November 25, 1997, employer moved to terminate
claimant's benefits based on Dr. Eglevsky's November 6, 1997
report, that claimant's ongoing disability was not causally
related to her 1994 injury.
In opposing employer's change-in-condition application,
claimant presented the medical records of Dale Pcsolyar, a
neurologist whom claimant apparently saw on referral from her
personal internist. On November 13, 1997, Dr. Pcsolyar noted
that claimant's pain could be "strictly myofascial pain, may be
piriformis syndrome." He also said he could not "rule out
sacroiliac joint pain referral, facet joint pain referral [or]
. . . internal disk disruption" but that he did not think it was
neuropathic in origin. Finally, he said, "[g]iven her widespread
musculoskeletal pain, [he] would like to look for . . . causes
other than fibromyalgia." Dr. Pcsolyar reviewed claimant's most
recent MRI, and on December 11, 1997, he recommended a
"Somatosensory Evoked Potential" or "SSEP to rule out
radiculopathy in which case this would of course implicate the
degenerated disk disease affecting nerve roots causing her pain
syndrome." He noted that "if the SSEP is abnormal, then only
nerve root impingement either through the piriformis or from the
disk would account for such an abnormality." The results from
the "left sural SSEP" were abnormal, which Pcsolyar said "could
be indicative of an abnormality between the point of stimulation
to the S1 lumbar nerve root and could be seen in an S1
radiculopathy on the left."
- 4 - II.
ANALYSIS
"In an application for review of an award on the ground of a
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence." Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423
S.E.2d 214, 216 (1992) (citation omitted). Factual findings made
by the commission in reviewing the employer's change-in-condition
application are "conclusive and binding on the appellate court if
based on credible evidence." Jules Hairstylists, Inc. v.
Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985). In
determining whether credible evidence exists, we view the
evidence in the light most favorable to the prevailing party.
See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). This Court does not "'retry the facts,
reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses.'" Falls
Church Constr. Corp. v. Valle, 21 Va. App. 351, 359, 464 S.E.2d
517, 522 (1995) (citation omitted). Although the opinion of the
treating physician is entitled to great weight, see Pilot Freight Carriers v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572
(1986), "[m]edical 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, 214 (1991).
Here, the commission found that employer failed to prove
claimant's continuing disability was not related to her
- 5 - industrial injury. Implicit in the commission's decision is a
finding that Dr. Eglevsky's November 6, 1997 opinion was not
credible. The commission noted that, as late as October 9, 1997,
Dr. Eglevsky opined that the source of claimant's ongoing pain
was unclear and that "it could be related to the chronic
myofascial pain, scar tissue in her back or [chronic] muscular
problems." On November 6, 1997, however, less than one month
later, and in the absence of an additional medical examination,
Eglevsky was certain that claimant's ongoing chronic pain
problems resulted from a single source, her pre-existing
fibromyalgia or "chronic myofascial pain," and were unrelated to
her compensable injury of September 7, 1994. In implicitly
rejecting this opinion, the commission noted that "[t]he record
contain[ed] no medical report between [Dr. Eglevsky's October 9,
1997 office note] and the doctor's November 6, 1997, letter"
which would support his change in opinion. Under the
commission's authority to assess the credibility of the witnesses
and determine what weight to give medical evidence, it was free
to reject Dr. Eglevsky's opinion as to causation. Once it
rejected that opinion, no evidence in the record proved that
claimant's ongoing disability was not causally related to her
compensable injury.
Employer contends that the fact that Dr. Eglevsky mentioned
more than one possible source of claimant's ongoing chronic pain
in his office note of October 9, 1997, does not mandate the
conclusion that claimant's ongoing disability is causally related to her compensable injury. Although this assertion is true, it
- 6 - does not take into account the fact that employer bore the burden
of proving, on its change-in-condition application, that
claimant's ongoing pain and related disability are not causally
related to her compensable injury. Therefore, considering only
Dr. Eglevsky's medical records and opinions, the commission was
free to reject his most recent opinion on the issue of causation
as not credible.
Here, the commission also relied upon the reports of Dr.
Pcsolyar, a neurologist, and the absence of any reports from Dr.
Miller, a physician who had treated claimant for her fibromyalgia
in the past. Dr. Pcsolyar's records from November 1997 indicated
several possible causes for claimant's ongoing pain, including
"strictly myofascial pain," "piriformis syndrome," "sacroiliac
joint pain referral, facet joint pain referral [or] . . .
internal disk disruption." Therefore, unlike Dr. Eglevsky, Dr.
Pcsolyar was unable to conclude that claimant's ongoing pain was
caused solely by her pre-existing fibromyalgia. Furthermore, Dr.
Pcsolyar performed additional testing, a "[s]omatosensory
[e]voked [p]otential test" or "SSEP." His records indicated that
the results from the "left sural SSEP" were abnormal and that
"only nerve root impingement either through the piriformis or
from the disk would account for such an abnormality." Therefore,
Dr. Pcsolyar's testing resulted in objective findings which
implicated sources for claimant's ongoing pain other than, or in
addition to, claimant's fibromyalgia, whereas Dr. Eglevsky had
noted a lack of objective findings and concluded that claimant's
ongoing chronic pain stemmed solely from her fibromyalgia.
- 7 - "Questions raised by conflicting medical opinions must be
decided by the commission." Penley v. Island Creek Coal Co., 8
Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). Although Dr.
Pcsolyar rendered no opinion as to the causal relationship
between the nerve root impingement "either through the piriformis
or from the disk" and claimant's compensable injury, Dr.
Eglevsky's records and November 6, 1997 letter provide no
indication that he considered these possible sources of
claimant's pain in rendering his opinion on causation.
Therefore, Dr. Pcsolyar's opinions provided a further basis for
the commission's rejection of Dr. Eglevsky's November 6, 1997
opinion on causation.
For these reasons, we hold that credible evidence supported
the commission's denial of employer's change-in-condition
application seeking termination of claimant's benefits.
Therefore, we affirm the commission's decision.
Affirmed.
- 8 -