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UNINSURED EMPLOYER'S FUND v. NICHOLS



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UNINSURED EMPLOYER’S
FUND

v.

NICHOLS


MARCH 14, 2000

Record No. 1338-99-3

UNINSURED EMPLOYER’S FUND

v.

TONY ALLEN NICHOLS

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Present: Judges Coleman, Annunziata and
Bumgardner

Argued at Salem, Virginia

Patricia H. Quillen, Assistant Attorney General
(Mark L. Earley, Attorney General; John J. Beall, Jr., Senior
Assistant Attorney General, on brief), for appellant.

William H. Fralin, Jr. (Jolly, Place,
Fralin & Prillaman, P.C., on brief), for appellee.


MEMORANDUM OPINION[1] BY JUDGE
SAM W. COLEMAN III

The Uninsured Employer’s Fund appeals the
Workers’ Compensation Commission’s decision denying the Fund’s
application to terminate benefits based upon a change in
condition. The Fund alleged in its application that the claimant
was no longer disabled from the industrial accident and that his
residual disability was unrelated to the accident. The Fund
argues that the commission erred in finding that it failed to
prove that as of August 27, 1998, Tony Allen Nichols was no
longer disabled as a result of the compensable injury. We
disagree and affirm the commission’s decision.

BACKGROUND

Nichols was employed as a mechanic by Joseph
Wright, trading as Wright’s Lawn Service and Automotive Repair
(Wright). On April 20, 1996, while working for Wright, Nichols
was repairing a vehicle’s carburetor when the carburetor
backfired and caused flash burns over twenty percent of Nichols’
body, particularly his right upper arm. Nichols was treated at
the University of Virginia Medical Center Burn Center where he
underwent skin grafts to the right upper extremity and forearm
and to the right hand and three fingers of the right hand.
Nichols filed a claim for and was awarded temporary total
disability benefits. Upon finding that Wright was uninsured, the
commission ordered the Fund to satisfy the award.

In June 1997, Nichols underwent a functional
capacities evaluation (FCE) which revealed that he was limited in
his ability to lift with his left hand. Also, he was fifty
percent deficient in right hand grip strength and was unable to
sustain a strong right hand grip for more than two to three
seconds at one time. He was found to be limited in carrying
things with his right hand, working overhead, crawling, and
performing activities requiring fine motor coordination of his
right hand. If Nichols returned to work, the evaluator opined
that he would require tools with built-up handles and that he
would be unable to perform activities requiring sustained or
strong repetitive right hand grip strength.

On July 21, 1997, the Fund filed an Application
for Hearing, alleging that Nichols was released to return to his
pre-injury work by Dr. J. Samuel Mitchener, III, a plastic and
reconstructive surgeon who had treated Nichols after the
accident. Dr. Mitchener had also previously treated Nichols in
1995 for a blunt trauma injury to the dorsum of his right hand,
sustained while working for another employer. In his report, Dr.
Mitchener concluded that Nichols was able to return "to full
work," but he noted that Nichols "may have difficulties
finding employment given the deficits documented in the
FCE." Dr. Mitchener opined that Nichols could perform
"many types" of automotive and lawnmower repairs,
despite the fact that he had not been provided a detailed job
description of Nichols’ pre-injury work duties. The commission
denied the Fund’s application.

The Fund filed a second Change in Condition
Application, alleging that Nichols was no longer disabled as a
result of the industrial accident and, except for a residual
disability from a prior unrelated blunt trauma injury, that
Nichols would have been able to return to his pre-injury work as
of August 27, 1998. The Fund based its application upon Dr.
Mitchener’s report dated August 27, 1998.

The only evidence in the record delineating
Nichols’ pre-injury job duties is his affidavit stating that, as
a shop mechanic and supervisor, he was required routinely to
perform many tasks involving fine manipulation of objects with
both hands, many tasks requiring a strong right hand grip for
sustained periods, lifting heavy objects from floor to waist and
carrying objects with both hands, and crawling and working
overhead. Prior to the industrial accident, Nichols never
required the use of tools with "built-up handles" to
perform his work.

In June 1998, the Fund set forth in a letter to
Dr. Mitchener the pre-injury job duties as described by Nichols
in his affidavit. Dr. Mitchener had no other information
detailing Nichols’ pre-injury job duties. The Fund requested that
Dr. Mitchener evaluate Nichols and respond to several queries.
Nichols was examined by Dr. Mitchener, and in an August 27, 1998
letter, Dr. Mitchener opined that Nichols was not disabled due to
the burn injury; he stated that "it appears that any
disability . . . may be related to the blunt trauma
injury of September 22, 1995." Dr. Mitchener "strongly
suspected" that if Nichols had only the burn injury, he
would be able to return to his pre-injury status as an auto
mechanic and supervisor. Dr. Mitchener further noted that Nichols
had grip strength problems, but Dr. Mitchener attributed the
problems "almost entirely" to the blunt trauma injury
rather than the burn injury. Dr. Mitchener opined that Nichols
would not likely obtain pre-injury status and that he would have
permanent restrictions based on the lack of complete extension of
the right small finger. Dr. Mitchener noted that Nichols also
demonstrated signs of peripheral nerve irritation and/or
compression of unknown etiology. Dr. Mitchener opined that the
pain Nichols experiences in the right upper extremity was either
related to ulnar nerve compression at the right elbow or median
nerve compression at the wrist and recommended that Nichols
obtain a complete neurological evaluation.

The commission found that the Fund failed to
prove that Nichols was able to perform his pre-injury work. The
commission noted that Nichols was able to perform his pre-injury
work prior to the industrial accident despite the pre-existing
decreased range of motion in the right fifth digit due to the
1995 blunt trauma injury. The commission found that Nichols’
inability to perform his pre-injury work is evident from Dr.
Mitchener’s August 27, 1998 report in which Dr. Mitchener noted
that Nichols still experiences grip strength problems, even
though Dr. Mitchener attributed the problems "almost
entirely to the earlier blunt trauma injury." The commission
found that the Fund had failed to prove that the peripheral
neuropathy, which prevented Nichols from performing a number of
significant pre-injury work duties, was not related to the
industrial accident. The commission noted that the neuropathy was
not present before the industrial accident and that it was to an
area of the body where Nichols sustained extensive burns and skin
grafts.

ANALYSIS

"In an application for review of an award
on the ground of change in condition, the burden is on the party
alleging such change to prove his allegations by a preponderance
of the evidence." Pilot Freight Carriers, Inc. v. Reeves,
1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986). On appeal, we
view the evidence in the light most favorable to Nichols, the
prevailing party. See R.G. Moore Bldg. Corp. v. Mullins,
10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). We accept the
commission’s factual findings when they are supported by credible
evidence. See James v. Capitol Steel Constr. Co.,
8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

The commission found that the Fund failed to
prove by a preponderance of the evidence that Nichols’ residual
incapacity was not related to the industrial accident. The
commission stated that:

[T]he pre-existing [blunt trauma] injury was to
the dorsum of the right hand. In the industrial accident the
claimant suffered partial and full thickness burns
circumferentially of the right upper extremity from the hand to
the shoulder. Dr. Mitchener opined that the claimant exhibited
symptoms of peripheral nerve compression at the elbow or wrist,
an area encompassed by the burn injury and not by the
pre-existing injury . . . . [I]t appears that these symptoms may
be tied in some fashion to the claimant’s assertion that he
cannot now grip with his right hand.

The commission noted further that because Dr.
Mitchener recommended referral to a neurologist to determine the
cause of Nichols’ peripheral neuropathy in his right upper
extremity, the commission would not presume that the condition,
which had not existed prior to the burn injury, was not related
to the burn injury. The commission noted that Nichols’ blunt
trauma injury occurred before Nichols began working for Wright
and that nothing in the record indicates that Nichols’ pre-injury
work performance was affected by that injury. No evidence exists
to indicate that he experienced grip strength deficiencies, that
he was unable to perform all the functions of the job, or that he
required the use of special tools.

The commission articulated legitimate reasons
for giving little probative weight to Dr. Mitchener’s opinions.
"Medical evidence is not necessarily conclusive, but is
subject to the commission’s consideration and weighing." Hungerford
Mechanical Corp. v. Hobson
, 11 Va. App. 675, 677, 401 S.E.2d
213, 215 (1991). Contrary to the Fund’s contention, the burden of
proof was on the Fund, whose change in condition application
alleged that Nichols’ residual incapacity was unrelated to his
industrial accident, to prove that the disability resulting from
the irritation or degeneration of the nerves in Nichols’ right
hand was not caused by the industrial accident.

Here, the commission found that the Fund failed
to carry its burden of proof in that Dr. Mitchener’s evidence did
not persuade them that Nichols’ residual incapacity, specifically
the lack of grip strength in the right hand, was unrelated to the
industrial accident. Admittedly, Dr. Mitchener opined that
Nichols’ lack of grip strength was unrelated to the industrial
accident and that it probably was caused by "peripheral
nerve irritation and/or compression, etiology unknown." The
commission, however, was not required to accept Dr. Mitchener’s
conclusory opinion as to causation, nor was the commission
required to conclude from Dr. Mitchener’s opinion that because
the etiology of the nerve irritation or degeneration was unknown,
that the Fund had met its burden of proving that the disability
was not caused by the industrial accident. Quite simply, the
commission found that the Fund’s evidence, which consisted of
little more than one doctor’s opinion that the cause of Nichols’
nerve irritation or degeneration was unknown, was not convincing,
and therefore, not sufficient to persuade it that Nichols’
residual disability was unrelated to the burns and skin grafts
that this twenty-year-old laborer had suffered.

Because the evidence supports the commission’s
holding that the Fund did not prove that Nichols’ disability was
unrelated to his compensable injury, we affirm the commission’s
denial of the Fund’s application for termination of benefits.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

 

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