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AMOCO FOAM PRODUCTS CO. v. JOHNSON (59779)


AMOCO FOAM PRODUCTS CO.

v.

JOHNSON


January 8, 1999
Record No. 980139

AMOCO FOAM PRODUCTS COMPANY

v.

ESSIE L. JOHNSON

Present: All the Justices
OPINION BY JUSTICE A. CHRISTIAN COMPTON
FROM THE COURT OF APPEALS OF VIRGINIA


In this appeal of an award under the Workers’
Compensation Act, we review the Court of Appeals’ application of
the doctrine of compensable consequences.

In July 1992, appellee Essie L. Johnson, the
claimant, sustained a compensable left ankle injury that arose
out of and in the course of her employment with appellant Amoco
Foam Products Company, the employer. Following lengthy treatment
and June 1994 surgery on the ankle, the claimant fell at home in
August 1994 while recovering from the surgery when the ankle gave
way, causing injury to her right knee.

In a September 1995 opinion, the Workers’
Compensation Commission affirmed a deputy commissioner’s ruling
that the 1994 right knee injury was a compensable consequence of
the July 1992 industrial accident, and awarded compensation
accordingly. The self-insured employer did not appeal this award.

The present case arises from the claimant’s
application seeking payment of compensation as a result of a
further right knee injury that occurred in November 1995 when her
right knee "gave out" at home causing her to fall. The
claimant sought permanent disability benefits as a result of a
20% loss of use to the right leg caused by the August 1994
compensable consequence injury. The claimant also sought
compensation for a period of total work incapacity of about 30
days during November-December 1995 as a result of the further
right knee injury occurring in November 1995.

In a January 1997 opinion, the Commission
affirmed a deputy commissioner’s decision awarding benefits. The
deputy found that the claimant’s November 1995 fall was a
compensable consequence of her August 1994 accident, which, in
the Commission’s words, "was previously adjudged to be a
compensable consequence of the claimant’s original industrial
injury."

Following the employer’s appeal, a panel of the
Court of Appeals unanimously affirmed the Commission. Amoco
Foam Prod. Co.
v. Johnson, 26 Va. App. 267, 494 S.E.2d
169 (1997). In framing the issue, the Court of Appeals said:
"The determination that the 1994 knee injury was a
compensable consequence of claimant’s ankle injury is res judicata.
It is undisputed that claimant’s original 1992 injury was not the
immediate cause of her 1995 injury. Consequently, the issue
before us is whether as a matter of law the commission may award
benefits for an injury caused by a compensable consequence, or,
in other words, whether a claimant may recover for a compensable
consequence of a compensable consequence." Id. at
273, 494 S.E.2d at 172.

Answering the question in the affirmative, the
Court of Appeals stated: "In the instant case, the evidence
established that claimant’s 1995 knee injury was causally related
to her 1994 knee injury which was causally related to her initial
ankle injury. This chain of causation is direct and natural, and
there is no evidence of any intervening cause attributable to
claimant’s conduct. Furthermore, claimant’s 1994 compensable
consequence knee injury becomes a primary injury, and the injury
it caused in 1995 is clearly a compensable consequence of it. We
hold that claimant’s November 1995 knee injury is a compensable
consequence of her 1994 knee injury and of her 1992 ankle
injury." Id. at 275-76, 494 S.E.2d at 173-74. The
employer appeals.

The question is whether the Court of Appeals
was correct in answering the foregoing question affirmatively. We
hold that the court erred.

Any discussion of the doctrine of compensable
consequences must recognize the basic concept that a disputed
accidental injury must arise out of and be in the course of
employment in order to be compensable. See Code
? 65.2-101 (defining "Injury").

This Court first addressed the compensable
consequences idea in Immer and Co. v. Brosnahan,
207 Va. 720, 152 S.E.2d 254 (1967). There, the question presented
was "whether an employee who suffers a compensable injury
may be awarded compensation for additional injuries suffered in
an automobile accident occurring while the employee is en route
from his place of employment to a doctor’s office for further
treatment of the original injury." Id. at 721, 152
S.E.2d at 255. The Court stated, regarding the second injury,
"[t]he struggle seems to be with determining whether such an
additional injury ‘arises out of the employment.’ The eternal
search in making the . . . determination is to find the
presence or absence of a ‘causal connection’ between the
incidents of employment and the additional injuries." Id.
at 722, 152 S.E.2d at 255-56. Affirming the employee’s award of
compensation, the Court said the evidence in that case
established such a causal connection. Id. at 728, 152
S.E.2d at 259.

Citing Brosnahan, the Court discussed
the doctrine of compensable consequences in Leonard v. Arnold,
218 Va. 210, 237 S.E.2d 97 (1977). There, a claimant was injured
in a restaurant when he fell while on crutches required for
treatment of an initial industrial injury. This Court pointed out
that the "doctrine extends the canopy of the Workman’s
Compensation Act to the resulting injury . . . because
the second injury is treated as if it occurred in the course of
and arising out of the employee’s employment." Id. at
214, 237 S.E.2d at 100.

Under the Brosnahan test, the crucial
inquiry here is whether there is a causal connection between the
incidents of employment giving rise to the 1992 ankle injury and
the additional 1995 knee injury. The record in this case clearly
establishes there is not.

The Court of Appeals stated: "It is
undisputed that claimant’s original 1992 injury was not an
immediate cause of her 1995 injury." This conclusion is
fully supported by the relevant medical testimony. The claimant’s
attending physician reported in April 1996: "Essie Johnson
fell originally in August of 1994. She had another fall in
November 1995, but I tend to think that this was largely due to
the injury of August 1994. She was having pain at the time of
November 1995 following the injury of August 1994 and her knee
‘buckled’ on her. I tend to think that her continued pain is what
actually caused her to buckle, and that this is all causily [sic] related to the August 1994 injury."

In sum, the record fails to establish a causal
connection between the original injury and the November 1995
injury, a requirement for compensability of the latter injury. In
other words, the latter injury did not arise out of the
employment because there is absence of a causal connection
between the incidents of claimant’s employment and the 1995
injury.

Under these circumstances, contrary to the
Court of Appeals’ ruling, it does not logically follow that
merely because the 1994 injury was causally related to the 1992
accident and the 1995 injury was causally related to the 1994
injury, then the 1995 injury was causally related to the 1992
accident. The link of causation must directly connect the
original accidental injury with the additional injury for which
compensation is sought. Thus, the Court of Appeals erred in
holding that claimant’s November 1995 knee injury was a
compensable consequence of her 1992 ankle injury.

Accordingly, we will reverse the judgment of
the Court of Appeals affirming the award of compensation for
total work incapacity from November 13 through December 12, 1995,
and will enter final judgment here dismissing the application for
those benefits. This judgment, however, does not affect the award
of compensation "for 20% permanent loss of the right
leg." Those permanent disability benefits are not
legitimately in question in this appeal because they were based
on the ruling that the August 1994 injury was a compensable
consequence of the 1992 injury, a ruling that was not appealed.

Reversed and final judgment.

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