COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements Argued at Richmond, Virginia
ORVILLE L. DEMPSEY MEMORANDUM OPINION* BY v. Record No. 0086-01-2 JUDGE JEAN HARRISON CLEMENTS NOVEMBER 27, 2001 HENRICO (COUNTY OF) FIRE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory S. Hooe (Brenner, Evans & Yoffy, P.C., on brief), for appellant.
Michael P. Del Bueno (Ralph L. Whitt, Jr.; Whitt & Associates, on brief), for appellee.
Orville L. Dempsey (claimant) appeals the decision of the
Workers' Compensation Commission (commission) denying his claim
for medical benefits from Henrico County Fire (employer). He
contends the full commission erred in finding that his
precautionary medical treatment for possible tuberculosis was
not causally related to the tuberculin skin test he was given as
part of his required annual physical because (1) the evidence
did not support such a finding and (2) employer did not preserve
for review by the full commission the specific issue of
causation relevant to this case. Finding no error, we affirm
the commission's decision.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. EVIDENCE OF CAUSATION
Claimant contends the evidence presented was sufficient to
establish that the precautionary medical treatment he received for
possible tuberculosis was causally related to the tuberculin
injection he was given in conjunction with his employment. Thus,
claimant concludes the commission erred in finding there was no
causal relationship between his medical treatment and the
compensable injury he suffered as a result of the tuberculin skin
test.
In reviewing the commission's decision, we view the evidence
in the light most favorable to employer, the party prevailing
before the commission. See Allen & Rocks, Inc. v. Briggs, 28
Va. App. 662, 672, 508 S.E.2d 335, 340 (1998). To recover the
costs of medical treatment, claimant must prove, inter alia,
that the medical treatment was causally related to the
work-related injury. See Volvo White Truck Corp. v. Hedge, 1
Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). The commission's
determination of causation is a finding of fact. American
Filtrona Co. v. Hanford, 16 Va. App. 159, 165, 428 S.E.2d 511,
- 2 - 515 (1993). The factual findings of the commission are
conclusive and binding on appeal if supported by credible
evidence in the record. Southern Iron Works, Inc. v. Wallace,
16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993).
Here, the underlying facts and circumstances are not in
dispute. On June 17, 1999, claimant, a firefighter, received as
part of his required annual physical examination a skin test for
tuberculosis consisting of a tuberculin injection in his left
arm. The next day, claimant's left arm began to swell and turn
red. On June 21, 1999, claimant sought medical care from his
employee healthcare provider, who, upon examining his arm,
referred him to his family physician for evaluation of a
questionably positive tuberculin test.
Claimant's family physician, Dr. John Hoffman, examined
claimant on June 23, 1999 and gave him a chest x-ray. He noted
that claimant's lungs were clear 1 but also noted that, because it
was greater than ten millimeters, the swelling in claimant's arm
could be indicative of a positive reaction to the tuberculin
skin test. After consulting with the staff of the University of
Virginia Hospital, Dr. Hoffman prescribed a six-month treatment
for possible tuberculosis as a precautionary measure. He placed
claimant on the medication Asinusid for six months and ordered
1 The June 24, 1999 radiology report of claimant's June 23, 1999 chest x-ray confirmed that claimant's lungs were "clear of acute disease." - 3 - monthly blood tests to check the medication's effect on his
liver function. At no time was claimant diagnosed with
tuberculosis.
On August 31, 1999, claimant filed a claim with the
commission seeking to recover his medical expenses for the
six-month prophylactic treatment, which arose, he alleged, from
his June 21, 1999 work-related injury. The commission found
that claimant's adverse reaction to the tuberculin injection
—- the swelling and redness —- was a compensable work-related
injury but concluded that the treatment for which claimant
sought medical benefits was unrelated to that injury. As the
commission noted:
[Claimant] underwent a six-month course of treatment and routine monitoring of his liver function because of the concern that he had contracted tuberculosis, but there is no evidence that the injection caused, or could have caused, tuberculosis. The structural bodily change caused by the injection was limited to swelling and redness of the arm. There is no evidence that the claimant underwent treatment to reduce or eliminate this swelling and redness.
Thus, the commission concluded, "the employer in this case is
only responsible for adverse reaction to the test and not the
preventative treatment for the non-employment-related condition
of possible tuberculosis."
- 4 - It is, we find, abundantly clear from the record that,
while the tuberculin injection administered to claimant caused
an adverse reaction, it did not cause him to have tuberculosis.
Claimant testified that he was never advised by anyone that he
had tuberculosis. It is equally clear that the precautionary
medical treatment for which claimant sought compensation was
strictly for possible tuberculosis and not to alleviate or
remedy the adverse reaction itself. Indeed, in response to his
attorney's questions, claimant testified about the purpose of
the treatment he received as follows:
Q. Okay. Based upon Dr. Hoffman's examination of you and his conversations with UVA, what did you understand was going to be the course of treatment that was going to be provided? What were they going to do for you?
A. They was [sic] going to put me on Asinusid for six months.
Q. And what's the purpose of that particular medication?
A. It's a treatment for tuberculosis.
Q. Did you ask why you were being treated for tuberculosis when it appeared that you didn't have it?
A. Yes, I did, and I was told it was precautionary.
Q. And what was the reason for the precautionary measures that were taken, to your understanding?
A. According to what UVA Hospital told Dr.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements Argued at Richmond, Virginia
ORVILLE L. DEMPSEY MEMORANDUM OPINION* BY v. Record No. 0086-01-2 JUDGE JEAN HARRISON CLEMENTS NOVEMBER 27, 2001 HENRICO (COUNTY OF) FIRE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory S. Hooe (Brenner, Evans & Yoffy, P.C., on brief), for appellant.
Michael P. Del Bueno (Ralph L. Whitt, Jr.; Whitt & Associates, on brief), for appellee.
Orville L. Dempsey (claimant) appeals the decision of the
Workers' Compensation Commission (commission) denying his claim
for medical benefits from Henrico County Fire (employer). He
contends the full commission erred in finding that his
precautionary medical treatment for possible tuberculosis was
not causally related to the tuberculin skin test he was given as
part of his required annual physical because (1) the evidence
did not support such a finding and (2) employer did not preserve
for review by the full commission the specific issue of
causation relevant to this case. Finding no error, we affirm
the commission's decision.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I. EVIDENCE OF CAUSATION
Claimant contends the evidence presented was sufficient to
establish that the precautionary medical treatment he received for
possible tuberculosis was causally related to the tuberculin
injection he was given in conjunction with his employment. Thus,
claimant concludes the commission erred in finding there was no
causal relationship between his medical treatment and the
compensable injury he suffered as a result of the tuberculin skin
test.
In reviewing the commission's decision, we view the evidence
in the light most favorable to employer, the party prevailing
before the commission. See Allen & Rocks, Inc. v. Briggs, 28
Va. App. 662, 672, 508 S.E.2d 335, 340 (1998). To recover the
costs of medical treatment, claimant must prove, inter alia,
that the medical treatment was causally related to the
work-related injury. See Volvo White Truck Corp. v. Hedge, 1
Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). The commission's
determination of causation is a finding of fact. American
Filtrona Co. v. Hanford, 16 Va. App. 159, 165, 428 S.E.2d 511,
- 2 - 515 (1993). The factual findings of the commission are
conclusive and binding on appeal if supported by credible
evidence in the record. Southern Iron Works, Inc. v. Wallace,
16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993).
Here, the underlying facts and circumstances are not in
dispute. On June 17, 1999, claimant, a firefighter, received as
part of his required annual physical examination a skin test for
tuberculosis consisting of a tuberculin injection in his left
arm. The next day, claimant's left arm began to swell and turn
red. On June 21, 1999, claimant sought medical care from his
employee healthcare provider, who, upon examining his arm,
referred him to his family physician for evaluation of a
questionably positive tuberculin test.
Claimant's family physician, Dr. John Hoffman, examined
claimant on June 23, 1999 and gave him a chest x-ray. He noted
that claimant's lungs were clear 1 but also noted that, because it
was greater than ten millimeters, the swelling in claimant's arm
could be indicative of a positive reaction to the tuberculin
skin test. After consulting with the staff of the University of
Virginia Hospital, Dr. Hoffman prescribed a six-month treatment
for possible tuberculosis as a precautionary measure. He placed
claimant on the medication Asinusid for six months and ordered
1 The June 24, 1999 radiology report of claimant's June 23, 1999 chest x-ray confirmed that claimant's lungs were "clear of acute disease." - 3 - monthly blood tests to check the medication's effect on his
liver function. At no time was claimant diagnosed with
tuberculosis.
On August 31, 1999, claimant filed a claim with the
commission seeking to recover his medical expenses for the
six-month prophylactic treatment, which arose, he alleged, from
his June 21, 1999 work-related injury. The commission found
that claimant's adverse reaction to the tuberculin injection
—- the swelling and redness —- was a compensable work-related
injury but concluded that the treatment for which claimant
sought medical benefits was unrelated to that injury. As the
commission noted:
[Claimant] underwent a six-month course of treatment and routine monitoring of his liver function because of the concern that he had contracted tuberculosis, but there is no evidence that the injection caused, or could have caused, tuberculosis. The structural bodily change caused by the injection was limited to swelling and redness of the arm. There is no evidence that the claimant underwent treatment to reduce or eliminate this swelling and redness.
Thus, the commission concluded, "the employer in this case is
only responsible for adverse reaction to the test and not the
preventative treatment for the non-employment-related condition
of possible tuberculosis."
- 4 - It is, we find, abundantly clear from the record that,
while the tuberculin injection administered to claimant caused
an adverse reaction, it did not cause him to have tuberculosis.
Claimant testified that he was never advised by anyone that he
had tuberculosis. It is equally clear that the precautionary
medical treatment for which claimant sought compensation was
strictly for possible tuberculosis and not to alleviate or
remedy the adverse reaction itself. Indeed, in response to his
attorney's questions, claimant testified about the purpose of
the treatment he received as follows:
Q. Okay. Based upon Dr. Hoffman's examination of you and his conversations with UVA, what did you understand was going to be the course of treatment that was going to be provided? What were they going to do for you?
A. They was [sic] going to put me on Asinusid for six months.
Q. And what's the purpose of that particular medication?
A. It's a treatment for tuberculosis.
Q. Did you ask why you were being treated for tuberculosis when it appeared that you didn't have it?
A. Yes, I did, and I was told it was precautionary.
Q. And what was the reason for the precautionary measures that were taken, to your understanding?
A. According to what UVA Hospital told Dr. Hoffman there had been a rash of TB cases coming up in the recent months and - 5 - past couple of years and as a precaution they recommended that they go ahead and put me on a treatment for it.
Q. Okay. And did you follow that treatment course?
A. Yes, sir, I did.
Furthermore, the record is devoid of any evidence showing that
the medication prescribed by Dr. Hoffman for the treatment of
possible tuberculosis was, as claimant suggests on appeal, also,
"coincidentally," the treatment for the swelling and redness in
his left arm.
Accordingly, we hold that the commission's factual finding
that claimant's precautionary treatment was not causally related
to his adverse reaction to the tuberculin skin test is supported
by credible evidence. It is, therefore, conclusive and binding
on appeal.
II. PRESERVATION OF ISSUE FOR REVIEW BY FULL COMMISSION
Claimant further contends the commission abused its
discretion in reversing the deputy commissioner's decision with
respect to the issue of the causal relationship between the
work-related injury and claimant's medical treatment for
possible tuberculosis because employer did not specifically
raise that issue in its request for review or specifically argue
that issue in its written statement. We disagree.
A party's failure to specifically raise or argue a
particular issue does not preclude the full commission's - 6 - consideration of that issue. Rule 3.1 of the Rules of the
Virginia Workers' Compensation Commission provides that the full
commission may, "on its own motion, address any error and
correct any decision on review if such action is considered to
be necessary for just determination of the issues." Thus, the
commission may "address and correct, sua sponte, any error[] of
the deputy commissioner" regardless of whether the error was
specifically raised in the request for review or specifically
addressed in the written statement. Russell Stover Candies v.
Alexander, 30 Va. App. 812, 821, 520 S.E.2d 404, 409 (1999).
Here, because, as we held above, credible evidence supports
the commission's finding that claimant's medical treatment for
possible tuberculosis was not causally related to his
work-related injury, the commission did not err in reversing the
deputy commissioner's decision in order to achieve a "just
determination of the issues."
Accordingly, we affirm the commission's decision.
Affirmed.
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