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WILLIAMS INDUSTRIES, INC. v WAGONER


WILLIAMS INDUSTRIES,
INC. AND
PACIFIC EMPLOYERS INSURANCE COMPANY

v.

WAGONER


FEBRUARY 11, 1997
Record No. 0861-96-2

WILLIAMS INDUSTRIES, INC. AND
PACIFIC EMPLOYERS INSURANCE COMPANY

v.

TERRY LYNN WAGONER

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia

OPINION BY JUDGE MARVIN F. COLE
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Arthur T. Aylward (Midkiff & Hiner, P.C., on briefs), for
appellants.

B. Mayes Marks, Jr. (B. Mayes Marks, Jr., P.C., on brief), for
appellee.


Williams Industries, Inc. and Pacific Employers Insurance
Company (collectively "employer") appeal the decision
of the Workers’ Compensation Commission ("commission")
awarding temporary total disability benefits to Terry Lynn
Wagoner ("claimant"). Employer argues that the
commission erred (1) in determining that claimant’s work-related
spinal injuries aggravated his idiopathic hip disease; (2) in
applying the compensable consequences doctrine; and (3) in
concluding that employer was responsible for all expenses related
to claimant’s hip disease. Because the commission did not err, we
affirm its decision.

BACKGROUND

Claimant, who worked as a draftsman for employer, suffered a
back injury on April 11, 1991, in an accident accepted as
compensable by employer. Claimant’s injuries included herniated
discs at L4-5 and L5-S1, as well as degenerative joint disease
and spinal stenosis. Claimant underwent various surgical
procedures to treat his spinal injuries, which included bone
grafts taken from his hips. A laminectomy and discectomy for the
herniation at L4-5 was performed by Dr. Hallett H. Mathews,
treating physician and orthopaedic surgeon, on May 9, 1991. Dr.
Mathews reported that claimant’s work-related injury continued.
Fusion surgery was performed on April 1, 1993, for the spinal
stenosis at L4-5 with intercondylar collapse at L5-S1, and for a
lumbar instability syndrome. The employer accepted liability for
these conditions and paid related benefits. Claimant last
received compensation on October 6, 1993, before he returned to
work.

In August 1994, claimant began reporting tenderness and pain
in both hips. On August 3, 1994, Dr. Mathews found evidence of
avascular necrosis ("AVN") in both of claimant’s hips.[1] On
October 17, 1994, Dr. Mathews commented that claimant "is
having a lot of back aggravation because of his protected gait
for both hips. He has [AVN] and we have made this diagnosis
bilaterally." On August 5, 1994, orthopaedic surgeon Dr.
Douglas E. Jessup agreed that claimant had "idiopathic
osteonecrosis [of] both femoral heads." Orthopaedic surgeon
Dr. William A. Jiranek examined claimant on October 21, 1994,
also diagnosed bilateral osteonecrosis, and recommended surgery,
which was performed on December 14, 1994.

On December 21, 1994, Dr. Rebecca M. Bigoney opined that
claimant’s AVN "clearly appears to be related to the
previous back injury." On February 13, 1995, Dr. Mathews
noted complaints of back and left leg symptoms and reported that
claimant "has had bilateral hip, [AVN] and coring by Dr.
Jiranek and certainly his hips have been made worse by the lumbar
spine surgery and the protection that he has had to do for his
back and also the stairs and steps which have been part of his
job requirements." On March 8 and March 15, 1995, Dr.
Mathews again commented on the interrelationship between
claimant’s back and hip pain, stating that claimant’s ongoing
back condition "has certainly caused wear and tear in his
hips which has propagated an ongoing condition of [AVN]. They are
now feeding off of each other with symptomatology."

On March 13, 1995, claimant filed a change in condition
application, requesting temporary total disability benefits for
the period from December 14, 1994 to January 3, 1995, payment of
all bills related to the hip surgery, and permanent partial
disability benefits. The deputy commissioner found that while not
actually causing claimant’s AVN, treatment for claimant’s
work-related spinal injuries aggravated the AVN. The
deputy commissioner awarded claimant temporary total disability
benefits and surgery costs.

The full commission affirmed the deputy commissioner’s
opinion, finding that the record proved that claimant’s AVN was
both aggravated by and aggravated claimant’s back injuries. The
commission found employer liable for claimant’s AVN condition,
even if the condition was idiopathic in etiology.

ANALYSIS

On appeal, we review the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings by the commission that are supported by credible
evidence are conclusive and binding upon this Court. Code ?
65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va.
App. 227, 229, 409 S.E.2d 824, 826 (1991).

The commission found, and claimant concedes, that no evidence
proved that his original back injury caused the AVN in his
hips. Claimant argues, however, that his AVN preexisted
his back injury and was aggravated by the back injury. Employer
argues that claimant’s AVN arose after claimant’s back
injury and became debilitating independent of the back injury.

The doctrine of compensable consequences is well established
and has been in existence for many years. We have stated the
basic principle:

When the primary injury is shown to have arisen out of and
in the course of employment, every natural consequence that
flows from the injury likewise arises out of the employment,
unless it is the result of an independent intervening cause
attributable to claimant’s own intentional conduct. Morris
v. Badger Powhatan/Figgie, Int’l., Inc.
, 3 Va. App. 276,
283, 348 S.E.2d 876, 879 (1986) (quoting A. Larson, The
Law of Workmen’s Compensation
, ?? 13 and 81.30).

Larson further explains that:

A distinction must be observed between causation rules
affecting the primary injury . . . and causation rules that
determine how far the range of compensable consequences is
carried, once the primary injury is causally connected with
the employment. As to the primary injury, it has been shown
that the "arising" test is a unique one quite
unrelated to common law concepts of legal cause, and . . .
the employee’s own contributory negligence is ordinarily not
an intervening cause preventing initial compensability. But,
when the question is whether compensability should be
extended to a subsequent injury or aggravation related in
some way to the primary injury, the rules that come into play
are essentially based upon the concepts of "direct and
natural results," and the claimant’s own conduct as an
independent intervening cause. Id. at ? 13.11.

In Burlington Mills Corp. v. Hagood, 177 Va. 204, 13
S.E.2d 291 (1941), claimant was working at a machine, about
fifteen feet from an electric motor which was being repaired. A
loose wire in the motor caused a short circuit, which produced an
electric flash and a sound resembling that of a shotgun. Claimant
saw the flash and fell backwards when she was rescued by a
co-employee. First aid was administered and she was sent home.
She testified that she was in good health prior to this incident.
She returned to work the following day. While at work about a
month later, claimant looked up and suddenly saw the employee who
had caught her when she fell. She fainted and fell and at the
time of the hearing had not returned to work. The medical
evidence of both parties conclusively established that the cause
of the disability was traumatic neurosis. The commission traced
this to the original accident and awarded compensation for the
neurosis. The Supreme Court said:

The doctors thus, in effect, stated that traumatic
neurosis was traceable to the shock or disturbing effect on
the nerves of the patient, and that in turn, the irritation
of the nerves caused functional disorders, and, that whether
the disability resulted from nervous reaction or from
auto-suggestion set in motion by memory of the accident, the
result was the same to the injured person. Id. at 209,
13 S.E.2d at 293.

The Supreme Court pointed out in Burlington Mills Corp.
that the claimant’s disability was occasioned by an injury which
"may be fairly traced" to a risk which arose out of and
in the course of her employment. There was a direct causal
relation between the electric flash and the irritated condition
of her nervous system. Id. at 210, 13 S.E.2d at 293; see
also E.C. Womack, Inc. v. Ellis, 209 Va. 588,
592-93, 166 S.E.2d 265, 268-69 (1969) (holding that psychiatric
symptoms resulting in disability from work flowed from injuries
received in primary accident and were compensable); Imperial
Trash Service v. Dotson
, 18 Va. App. 600, 606-07, 445 S.E.2d
716, 720 (1994) (citation omitted) (stating general rule
"’When the primary injury is shown to have arisen out of and
in the course of employment, every natural consequence that flows
from the injury likewise arises out of the employment, unless it
is the result of an independent intervening cause attributable to
claimant’s own intentional conduct.’").

Assuming that claimant’s AVN preexisted his back
injury, the law supports the commission’s decision that employer
was liable for the costs associated with claimant’s AVN. It is
well established that the employer takes the employee as the
employer finds the employee, even where the employee suffers some
physical infirmity. Kemp v. Tidewater Kiewit, 7 Va. App.
360, 363, 373 S.E.2d 725, 726 (1988). "A finding that a
pre-existing condition ‘was accelerated or aggravated’ by an
injury sustained in an industrial accident establishes a causal
connection between the injury and disability[,] and the
‘disability resulting therefrom is compensable under the Workers’
Compensation Act.’" Southern Iron Works, Inc. v. Wallace,
16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993) (quoting Olsten
of Richmond v. Leftwich
, 230 Va. 317, 320, 336 S.E.2d 893,
895 (1985)). As we will discuss below, sufficient evidence proved
that claimant’s back injury accelerated and aggravated his AVN.
Therefore, the commission did not err in ruling that employer was
liable if claimant’s AVN preexisted his back injury.

Assuming that claimant’s AVN did not preexist his back
injury, but instead arose after his back injury, the
commission also did not err in ruling that employer was
nevertheless liable for the costs associated with claimant’s AVN.
The commission found that the claimant’s back injury was
aggravated by his AVN because he had to alter his gait pattern
and body mechanics to accommodate the AVN pain. Moreover, it
found to the extent his back was dysfunctional, the partial loss
of use inhibits such accommodation with respect to the AVN,
aggravating that condition. Additionally, the commission found
that because the AVN had to be treated in order to reduce the
effects on the work injury, the employer is responsible for the
costs of such treatment. We have reviewed the medical record and
we find credible evidence to support the commission’s findings.
The issue in cases involving the range of compensable
consequences flowing from the primary injury is essentially one
of whether the medical evidence proves a causal connection
between the primary injury and the subsequent occurrence. See
Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 100
(1977); Bartholow Drywall Co., Inc. v. Hill, 12 Va. App.
790, 794, 407 S.E.2d 1, 3 (1991).

Here, the commission did not err in determining that the
evidence proved the requisite "causal connection"
between claimant’s AVN and his back injury. The most competent
medical evidence supporting the commission’s conclusion includes
the February 13, 1995 note from Dr. Mathews, which reported that
claimant "has had bilateral hip, [AVN] and coring by Dr.
Jiranek and certainly his hips have been made worse by the
lumbar spine surgery
and the protection that he has had to do
for his back and also the stairs and steps which have been part
of his job requirements." (Emphasis added.) On March 8 and
March 15, 1995, Dr. Mathews again commented on the
interrelationship between claimant’s back and hip pain, stating
that claimant’s ongoing spine condition "has certainly
caused wear and tear in his hips which has propagated an ongoing
condition of [AVN]." Lastly, Dr. Bigoney opined that
claimant’s AVN "clearly appears to be related to the
previous back injury."

This evidence supports the commission’s finding that
claimant’s increasingly debilitating AVN was a natural
consequence that flowed from and was a direct result of his back
injury. Accordingly, claimant met his burden of proving that his
AVN was a compensable consequence of his back injury.

Finally, we agree with the commission’s determination that
employer should pay all costs related to claimant’s
treatment for his AVN. The commission stated:

[B]ecause the [AVN] must be treated to reduce the
symptomatology and its effects on the direct work injury,
such treatment is effectively treatment of the direct work
injury, and the employer must be responsible for the costs of
such treatment on these grounds also. . . . [I]t is clear
that the claimant’s [AVN] is both aggravated by and
aggravates the claimant’s work injury, so the employer is
liable for that condition also, even if it was idiopathic in
etiology.

The commission did not err, therefore, in holding the employer
responsible for all the expenses.

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

Affirmed.

 

FOOTNOTES:

[1] Dorland’s Illustrated
Medical Dictionary
, 26th ed. (1985) defines necrosis as
"the sum of the morphological changes indicative of cell
death and caused by the progressive degradative action of enzymes
. . . ." Dorland’s further identifies osteonecrosis
as "death, or necrosis, of bone," and avascular
necrosis as such cell death "due to deficient blood
supply."
Medical evidence in this case states that "AVN is due to a
disruption of the blood flow within the femoral heads."

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