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STATE FARM INSURANCE COMPANY and CONTINENTAL INSURANCE COMPANY v. HANCOCK (unpublished)


STATE FARM INSURANCE
COMPANY and

CONTINENTAL INSURANCE COMPANY

v.

HANCOCK
(unpublished)


JULY 1, 1997

Record No. 2646-96-3

STATE FARM INSURANCE COMPANY
and CONTINENTAL INSURANCE COMPANY

v.

EARL WAYNE HANCOCK

Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia

MEMORANDUM OPINION [1] BY
JUDGE SAM W. COLEMAN III
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Glenn S. Phelps (Ruth Nathanson; Midkiff & Hiner, P.C., on
brief), for appellants.

Richard M. Thomas (Rider, Thomas, Cleaveland, Ferris &
Eakin, on brief), for appellee.


State Farm Insurance Company and its insurer (employer) appeal
the decision of the Workers’ Compensation Commission denying
employer’s application for termination of the claimant’s
disability benefits on the ground that the claimant’s genetic
disorder, Charcot-Marie-Tooth disease, was the sole cause of his
continued disability. Finding no error, we affirm the
commission’s decision.

When viewed in the light most favorable to the claimant as the
prevailing party, the evidence proves that the claimant sustained
an injury by accident to his left leg. The parties entered into a
Memorandum of Agreement granting the claimant temporary total
disability benefits for a "left sciatic contusion — deep
vein thrombosis left leg." Approximately two years later,
the claimant was diagnosed with Charcot-Marie-Tooth disease, a
rare hereditary disorder which is a chronic nerve tissue disease
which eventually leads to muscular paralysis and atrophy. See
The Sloane-Dorland Ann. Medical-Legal Dictionary 71
(1987). The employer filed a change of condition application
alleging that the claimant’s continuing disability was unrelated
to his industrial accident.

"In an application for review of any 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). Upon appellate
review, questions raised by conflicting medical opinions are
questions of fact to be determined by the commission. See Penley
v. Island Creek Coal Co.
, 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989). "[W]here the commission resolves the
conflict in medical testimony, . . . the commission’s decision is
binding so long as it is supported by credible evidence." Stancill
v. Ford Motor Co.
, 15 Va. App. 54, 58, 421 S.E.2d 872, 874
(1992).

Here, the commission’s decision was based upon credible
evidence in the record. Dr. Eckert, the claimant’s treating
physician, opined that the Charcot-Marie-Tooth syndrome was a
pre-existing condition and that the claimant’s "prolonged
and paradoxical recovery" from his work-related injury was
complicated by the syndrome. He also was of the opinion that both
the syndrome and the injury "played a part in [the
claimant's] disability." Dr. Davidson, a vascular surgeon,
opined that the claimant had not sufficiently recovered from his
deep vein thrombosis and sciatica to be able to perform his job.
Dr. Widmeyer, an orthopedist, indicated that the claimant’s
residual pain was caused by a combination of the
Charcot-Marie-Tooth syndrome and the deep vein thrombosis caused
by his industrial accident. Where a claimant’s ongoing disability
has two causes, one of which relates to employment and one
unrelated, the claimant is entitled to full benefits. Bergmann
v. L & W Drywall
, 222 Va. 30, 32, 278 S.E.2d 801, 803
(1981).

Although several other doctors stated that the claimant’s
continuing disability resulted solely from the
Charcot-Marie-Tooth syndrome, credible evidence supports the
commission’s factual finding and we are bound by that finding on
appeal. Therefore, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

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

 

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