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Surgeon’s Opinion Proved Compensable Aggravation

The Court of Appeals affirms the commission’s award of temporary total disability and medical benefits to an electrician supervisor based on his surgeon’s opinion that work-related lifting aggravated his existing back condition; the contrary opinion of employer’s physician is of no consequence.

Employee injured his back working as an electrician supervisor at a prison facility on August 4, 2011.  He felt a “pop” in his lower back, immediate and continuing pressure when he went to lift a crate of fluorescent lighting ballasts weighing 30 to 40 pounds.  He drove home 1 ½ to 2 hours and felt increased pain on standing.  Two days later, he consulted the primary physician he had been seeing for his back pain since 2004 and was referred to an orthopedic practice that treated him previously. MRIs in 2004 and 2006 showed a herniated disc affecting a nerve root; he was treated conservatively with physical therapy and nutrition supplements.  In 2006, he received epidural injections after experiencing increased pain and numbness.  He sought medical treatment in 2008 and twice in 2010 and in July 2011 sought referral to a specialist.  Based on a third post injury MRI, a surgeon recommended surgery to decompress nerve roots.  After surgery on September 22, 2011, employee was released to full duty on Nov. 8, 2011.  His surgeon responded to employer’s questionnaire that employee’s back condition and surgery were directly related to his work injury with total disability from August 17 through Nov. 8, 2011.  Employer’s records review physician opined the surgery was related to employee’s pre-existing condition.  On deposition, employee’s surgeon stated the prior MRIs did not change his opinion because any prior herniation could have resolved itself by 2011.  The commission awarded employee medical and temporary total disability benefits.

On appeal, employer disputes the finding of work related injury, treatment and disability.  We affirm.  The record evidence supports the commission’s factual finding that employee’s August 4, 2011, injury materially aggravated his pre-existing condition.  Employee testified he felt a pop with immediate and lasting pressure; his surgeon’s opinion supports an accidental injury arising out of and in the course of employment.   The commission properly relied on the surgeon’s opinion in finding employee’s disability and treatment causally related to his work injury.  The contrary opinion of employer’s records review physician is of no consequence.  Sneed v. Morengo, Inc., 19 Va. App. 199 (1994), cited by employer, is distinguishable: as in Amelia Sand Co. v. Ellyson, 43 Va. App. 406 (2004), employee’s surgeon did not revise his opinion. He consistently related employee’s condition to his work related injury.


Davis & Green Inc. v. Lowery (Chafin) No. 1415-13-1, Feb. 25, 2014; Workers’ Comp. Comm’n, Steven H. Theisen III for appellants; Brody H. Reid for appellee. VLW 014-7-055(UP), 12 pp.

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