Wellmont Lonesome Pine Hosp v. Connie Cantor

• Court: Court of Appeals of Virginia
• Decided: August 12, 2003
• Docket: 0665033
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Willis

WELLMONT LONESOME PINE HOSPITAL AND RECIPROCAL OF AMERICA MEMORANDUM OPINION* v. Record No. 0665-03-3 PER CURIAM AUGUST 12, 2003 CONNIE JO CANTOR

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Ramesh Murthy; Lisa Frisina Clement; PennStuart, on brief), for appellants.

(D. Allison Mullins; Lee & Phipps, P.C., on brief), for appellee.

Wellmont Lonesome Pine Hospital and its insurer

(hereinafter referred to as "employer") contend the Workers'

Compensation Commission erred in finding that (1) the doctrine

of res judicata did not bar Connie Jo Cantor's (claimant) March

11, 2002 change-in-condition application related to her left

shoulder condition; and (2) claimant proved that her left

shoulder condition was causally related to her compensable June

18, 2001 injury by accident, entitling her to benefits beginning

April 15, 2002 and continuing. Upon reviewing the record and

the parties' briefs, we conclude that this appeal is without

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. merit. Accordingly, we summarily affirm the commission's

decision. Rule 5A:27.

Res Judicata

On appeal, employer argues that the doctrine of res

judicata barred the commission from considering claimant's March

11, 2002 change-in-condition application. Employer contends

claimant previously presented a claim for a left shoulder injury

to Deputy Commissioner Burchett, which was the subject of his

January 24, 2002 decision from which claimant did not appeal.

Employer did not raise the doctrine of res judicata as a

bar to claimant's March 11, 2002 application before the

commission. Accordingly, we will not consider it for the first

time on appeal. See Rule 5A:18.

Causation

On appeal, we view the evidence in the light most favorable

to the prevailing party below. R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "The

actual determination of causation is a factual finding that will

not be disturbed on appeal if there is credible evidence to

support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.

684, 688, 376 S.E.2d 814, 817 (1989). Furthermore, "[q]uestions

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).

- 2 - The June 18, 2001 emergency room report indicates that

claimant complained of a "neck, shoulder injury." On his June

18, 2001 Attending Physician's Report, Dr. W. Zahnke, the

emergency room physician, recorded that claimant "was pushing a

box on top shelf in stock room – pulled off piece of tape from

box [and] twisted [left] shoulder/neck."

Claimant began treatment with Dr. Ken Smith, a

neurosurgeon, on August 13, 2001. At that time, she complained

of left upper extremity numbness and tingling. Those complaints

continued throughout Dr. Smith's treatment. Dr. Smith

eventually referred claimant to Dr. S.K. Kotay, an orthopedist,

for her left shoulder complaints.

Dr. Kotay began treating claimant on March 11, 2002.

Dr. Kotay recorded a history of left shoulder pain with an onset

of June 2001 when claimant was lifting some heavy boxes over her

head and her shoulder popped, causing severe pain. Dr. Kotay

indicated that claimant subsequently had some numbness in her

hand and pain radiating down her arm.

In a March 13, 2002 Attending Physician's Report, Dr. Kotay

indicated that claimant's left shoulder pain was due to an

incident on June 18, 2001, when claimant was moving boxes above

her head onto a wire cart and felt pain in her neck and left

arm. As of April 15, 2002, Dr. Kotay excused claimant from all

work at least until her next appointment on May 13, 2002.

Dr. Kotay continued to treat claimant for left shoulder pain - 3 - with cortisone injections and issued another disability slip on

May 30, 2002, stating "no work until return appointment of

7/8/02." No evidence showed that Dr. Kotay ever subsequently

released claimant to return to her pre-injury employment.

In finding that claimant proved that her left shoulder

condition and disability commencing April 15, 2002 were causally

related to her June 18, 2001 compensable injury by accident, the

commission accepted Dr. Kotay's opinion, resolving any

inconsistencies in his medical records in favor of claimant.

Dr. Kotay's medical records and opinions, coupled with the

records of Dr. Smith and Dr. Zahnke, provide credible evidence

from which the commission could reasonably infer that claimant's

left shoulder complaints were causally related to her

compensable June 18, 2001 injury by accident and that she was

totally disabled beginning April 15, 2002 as a result of that

accident. "Where reasonable inferences may be drawn from the

evidence in support of the commission's factual findings, they

will not be disturbed by this Court on appeal." Hawks v.

Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695,

698 (1988). As fact finder, the commission was entitled to

weigh the medical evidence, to accept Dr. Kotay's opinion, and

to reject the contrary opinions of Drs. William A. McIlwain and

Jim C. Brasfield, who examined claimant upon employer's request.

"The fact that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the - 4 - commission's finding." Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

For these reasons, we affirm the commission's decision.

Affirmed.

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