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THOMAS v. PRINCE WILLIAM COUNTY SCHOOL BOARD



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THOMAS

v.

PRINCE WILLIAM COUNTY SCHOOL
BOARD


NOVEMBER 7, 2000

Record No. 1293-00-4

Present: Judges Willis, Frank and Clements

SHIRLEY M. THOMAS

v.

PRINCE WILLIAM COUNTY SCHOOL BOARD

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

(Herbert S. Rosenblum, on brief), for
appellant.

(Thomas C. Palmer, Jr.; Brault, Palmer, Grove,
Zimmerman, White & Steinhilber, LLP, on brief), for appellee.


MEMORANDUM OPINION[1] PER CURIAM

Shirley M. Thomas (claimant) contends that the
Workers’ Compensation Commission erred in finding that (1) she
failed to prove that back surgery proposed by Dr. Ian Gordon was
causally related to her compensable October 4, 1995 injury by
accident; and (2) her application alleging a change-in-condition
was barred by the applicable statute of limitations contained in
Code ? 65.2-708. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission’s decision. See
Rule 5A:27.

I. Surgery (Causation)

On appeal, we view the evidence in the light
most favorable to the prevailing party below. See R.G.
Moore Bldg. Corp. v. Mullins
, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). Unless we can say as a matter of law that
claimant’s evidence sustained her burden of proving that the
proposed back surgery was causally related to her October 4, 1995
injury by accident, the commission’s findings are binding and
conclusive upon us. See Tomko v. Michael’s Plastering
Co.
, 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

In ruling that claimant failed to prove that
Dr. Gordon’s proposed L3-4 surgical treatment was causally
related to her October 4, 1995 compensable injury by accident,
the commission found as follows:

The proposed surgery is to correct degenerative
disc disease at L3-4. The overwhelming weight of the evidence
shows the disc degeneration was neither caused, accelerated, nor
aggravated by the industrial accident. The records of the four
doctors[, Drs. Victor N. Guerrero, Herbert E. Lane, Jr., Anthony
Debs, and John A. Bruno, Jr.,] who did extensive orthopedic and
neurological work-ups of the injury failed to find any disc
disease at L3-4. Even Dr. Gordon could not state to a reasonable
medical probability that the disc degeneration pre-existed the
claimant’s injury.

Dr. Gordon, who did not see the claimant until
almost three years after the accident, can only state that the
"patient has evidence of degeneration of the 3-4 disc some
of which may have pre-existed her injury." Dr. Bruno, on the
other hand, clearly states in his February 23, 1999, report that
there is "no evidence that the trauma of 10/4/95 produced
whatever the disease process is at the 3-4 disk."

Given the claimant’s extensive treatment and
evaluation by four orthopaedic surgeons, a neurosurgeon, and
other medical specialists with multiple diagnostic work-ups, we
find it significant that no specialist diagnosed or even
suggested disc degeneration and disease at the L3-4 level before
Dr. Gordon. Although Dr. Gordon argues in his letter of March 15,
1999 to claimant’s counsel that "[i]t is clear by history
and by discography that this patient’s mild degeneration has been
severally [sic] aggravated by her injury and represents a work
injury," he cannot state to a reasonable medical probability
that the disc degeneration pre-existed her injury.

. . . [T]he first discogram,
performed on July 15, 1998 was characterized as an
"unremarkable exam" with "no evidence of
extravasation." The radiologist noted in his operative
report that injection at the L3-4 level reproduced pain in the
mid back, which the patient alleged was "similar in
character and location to her present pain problem."
However, when the claimant was initially seen by Dr. Gordon in
June 1998, Dr. Gordon found that most of the claimant’s problems
were related to the low back and particularly noted severe pain
and tenderness over the L5-S1 level as well as tenderness over
her coccyx.

Based upon Dr. Bruno’s February 23, 1999
opinions and the lack of any persuasive medical evidence of disc
disease at the L3-4 level before October 4, 1995 and before Dr.
Gordon began treating claimant, the commission could conclude
that claimant failed to prove that the October 4, 1995 accident
either caused, aggravated, or accelerated the L3-4 disc
degeneration, for which Dr. Gordon proposed performing surgery.
We note that an MRI of claimant’s lumbar spine, performed on July
19, 1996, nine months after her industrial accident, was
"essentially normal," with "no evidence of disc
herniation, significant degenerative change or herniated nucleus
pulposus." As fact finder, the commission was entitled to
weigh the medical evidence, to accept Dr. Bruno’s opinions, and
to give little probative weight to Dr. Gordon’s opinions.
"Questions 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).

Based upon this record, we cannot find as a
matter of law that claimant’s evidence sustained her burden of
proof.

II. Statute of Limitations

Code ? 65.2-708(A) provides in its
pertinent part that "[n]o . . . review [of any
award on the ground of change-in-condition] shall be made after
twenty-four months from the last day for which compensation was
paid, pursuant to an award under this title
. . . ."

It was undisputed that December 15, 1995 was
the last day for which compensation was paid to claimant pursuant
to an award
. If any payments were made after that date, there
is no evidence in the record to establish that they were paid
pursuant to an award.
[2] Claimant did not file her application alleging a
change-in-condition until March 18, 1999, more than twenty-four
months after December 15, 1995, the last day for which
compensation was paid pursuant to an award. Accordingly, the
commission did not err in finding that claimant’s application was
untimely.

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

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

[2] Although the record contains an Agreed Statement of
Fact and Supplemental Memorandum of Agreement apparently sent to
claimant in August 1997 by the employer’s loss control
specialist, those documents were never executed by claimant and
no award was ever entered by the commission with respect to those
documents.

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