Suite v. Clinchfield Coal Co.

383 S.E.2d 21, 8 Va. App. 554

• Court: Court of Appeals of Virginia
• Decided: September 12, 1989
• Docket: Record No. 1139-88-3
• Status: Published

Opinions

Opinion

KOONTZ, C.J.

In this appeal we are asked to decide whether the employer’s application for hearing alleging a change in condition stated a lack of causal connection between the industrial injury and appellant’s disability. Finding that it did, we affirm the decision of the Industrial Commission.

Curtis J. Suite, appellant, sustained a ventral incisional hernia as a result of his August 3, 1987 industrial accident. An award was entered in Suite’s favor, and he began receiving weekly payments. On November 20, 1987, the employer filed an application for hearing to terminate benefits, alleging a change in condition based on the “ [r] eport of Dr. Larsen to the effect [Suite was] able to return to [his] regular employment on November 2, 1987.” The deputy commissioner found, and the full commission affirmed, that the medical problems that interfered with appellant’s return to work were unrelated to the August 3 industrial injury and entered an award on the employer’s behalf terminating benefits.

Suite does not challenge the commission’s finding that he is no longer disabled by his industrial injury. Rather, he asserts that the issue of causal connection between his continued disability and his industrial accident was not before the commission and therefore it was error to enter an award based on lack of causal connection. Suite bases this argument on Celanese Fibers Co. v. Johnson, 229 Va. 117, 326 S.E.2d 687 (1985). In Celanese the employer’s application stated only that the claimant was “able to . . . return to [her] regular employment . . . .” Id. at 119, 326 S.E.2d at 689. The deputy commissioner found that the claimant was no longer disabled and could return to work and entered an award to that effect. The full commission reversed, stating that the evidence did not establish that the claimant was no longer disabled. On appeal our Supreme Court stated:

Where . . . causal connection between an industrial accident and disability has been established by the entry of an 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.

Id. at 120, 326 S.E.2d at 690. However, because the causal connection issue was not addressed by the deputy commissioner or the full commission, the Court held that the issue was not properly before the Court on appeal. In contrast to Celanese, we find that the issue of causal connection was raised by the employer in this case and was properly before the commission. The application stated that appellant was able to return to work based on the attached medical report of Dr. Larsen. Dr. Larsen’s report stated:

that as far as his recent operation goes [repair of the incisional hernia] [Suite] is now ready to return to work. He is, of course, quite frail, does have COPD [chronic obstructive pulmonary disease] and I do not think in any case that he should be doing heavy physical labor. This will probably remain the same the rest of his life. I do not feel at this point, however, that further delay in returning to work will affect his hernia repair.

Dr. Larsen’s report makes clear that Suite’s continued disability was unrelated to his industrial injury. We find that the reference to Dr. Larsen’s report was sufficient to raise the issue of lack of causal connection between the industrial injury and appellant’s disability. Unlike the employer’s application in Celanese, the employer’s application went beyond the mere assertion that appellant was able to return to work and stated as its basis, through the attached medical report, that Suite’s continued disability was not due to his industrial injury. Therefore, we hold that the causal connection issue was properly before the commission and it could enter an award on that basis. For the foregoing reasons, the decision appealed from is affirmed.

Affirmed.

Hodges, J., concurred.