AERY v. DEKALB POULTRY, 0548-92-2, Unpublished (Va.App. 1-19-1993)


APRIL A. AERY v. DEKALB POULTRY RESEARCH, et al.

Record No. 0548-92-2Court of Appeals of Virginia. Richmond.
January 19, 1993

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

F. Guthrie Gordon, III (Gordon Wyatt, on brief), for appellant.

Frederick M. Bruner (Law Offices of E. Wayne Powell, on brief), for appellees.

Present: Judges Elder, Fitzpatrick and Moon

Argued at Richmond, Virginia

MEMORANDUM OPINION[*]

[*] Pursuant to Code § 17-116.010 this opinion is not designated for publication.

JUDGE LARRY G. ELDER

April A. Aery appeals from the commission’s reversal of the deputy commissioner’s award of benefits. The sole issue presented for our review is whether claimant’s continuing disability was causally related to a compensable injury, such that it was compensable as a change in condition under Code §65.2-101. We find that it was not and affirm the decision of the commission.

On July 15, 1990, while employed by Dekalb Poultry Research, Aery suffered a job-related injury for which she received emergency medical treatment. The record is devoid of evidence as to whether the employer offered her a panel of health care providers from whom she could obtain follow-up care. Starting on the day following the accident, claimant worked continuously through August 15, 1990, at which time she suffered an unrelated

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injury that prevented her from working. She returned to work on October 12 and worked fairly steadily thereafter. Although she testified to having injured her back again on November 28, 1990, the commissioner found that she failed to give proper notice of that new injury. Claimant was discharged from employment on December 10 for unrelated reasons, at which time she moved to Farmville and took a job as a restaurant cook.

In March 1991, while still living in Farmville, claimant sought treatment from a chiropractor, Dr. Miers, for “neck, mid back, low back and headache pain.” Although Miers did not expressly state that claimant’s medical problems stemmed from her earlier compensable injury, he noted in his report to appellant’s attorney that the date of injury or onset was July 15, 1990, when appellant was “struck accidentally by falling egg cases.” He also noted that he had advised her to stay home from work in order “to offset postural stresses related to her [new] job.” On that basis, the deputy commissioner concluded that “the visit to Dr. Miers, although in a new location, was as a result of the July 15, 1990 accident” and should be paid for by her former employer.

In reviewing the deputy commissioner’s award, the commission reached the opposite conclusion, finding that “the medical evidence in this record is not sufficient to establish disability which is causally related to the injury of July 15, 1990.” Although noting that Drs. Miers and Haney had both reported the injury of July, 1990, in claimant’s medical history, the

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commission did not “find any persuasive basis for belief that the scoliosis or the cervical and thoracic problems mentioned in their reports [were] caused by the industrial accident of July 15, 1990.” The commission noted that Dr. Miers’ report linked claimant’s April, 1991, disability with “postural stresses related to her job” as a cook. On that basis, it concluded “that the record does not establish temporary partial or temporary total incapacity compensable under the Act and due to the industrial accident of July 15, 1990.”

On appellate review, we are guided by the principle that “an employee claiming reinstatement of disability benefits on account of a change in condition bears the burden of proving `that his present condition resulted naturally and unavoidably from the accident.'” King’s Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984) (quoting Old Dominion Land Co. v.Messick, 149 Va. 330, 335, 141 S.E. 132, 133 (1928)). In addition,

[p]roof of the causal connection . . . must go beyond the realm of conjecture. If it is just as likely that the disabling condition resulted from a cause which is not compensable as it is that it resulted from an accident covered by the Workers’ Compensation Act, the employee has failed to establish the requisite causal connection. . . . Evidence that disability “may be due” to an industrial accident “is not sufficient.”

Id. at 484, 317 S.E.2d at 149 (citations omitted). Although the commission did not discuss these principles expressly, it did conclude that the evidence was insufficient to support the deputy commissioner’s finding of causation. The commission acknowledged that Drs. Miers and Haney had both reported the July, 1990,

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injury in claimant’s medical history, but it did not “find any persuasive basis for belief that the scoliosis or the cervical and thoracic problems mentioned in their reports [were] caused by the industrial accident of July 15, 1990.”

In reviewing the commission’s determination, we keep in mind the following principles:

If there is evidence, or reasonable inferences can be drawn from the evidence, to support the Commission’s findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding. Although the findings of the [Workers’ Compensation] Commission, if based on credible evidence, are conclusive and binding upon us, the Commission’s findings of fact are not binding upon us when there is no credible evidence to support them. The question of the sufficiency of the evidence then becomes one of law.

Morris v. Badger Powhatan/Figgie Int’l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). In this case, it is theabsence of evidence linking the July, 1990, and April, 1991, injuries that led the commission to reverse the deputy’s award of benefits. Because these reports did not specifically state that claimant’s subsequent medical difficulties stemmed from her July, 1990, injury, we conclude that the commission was justified in finding that the claimant had not met her burden of showing causation.

This issue is similar to one we discussed in Morris, which also involved notes concerning claimant’s medical history, beginning with claimant’s initial injury and detailing her progressive symptoms. Id. at 281, 348 S.E.2d at 878. Although mentioning the initial injury, the treating physician in Morris “made no statement in his notes concerning the cause of the

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condition,” and we held that “[t]he note[s] [were] clearly a documentation of the medical history, and nothing more.”Id. Although the notes in this case do mention appellant’s July, 1990, injury and subsequent problems, they do not set forth any conclusions as to causation.

Because the record before us is devoid of any conclusive evidence concerning causation, we cannot conclude that the commission erred in holding that appellant’s April, 1991, disability was not compensable. Accordingly, we affirm the commission’s decision.

Affirmed.

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