Subsequent injuries were compensable consequences

There was credible evidence to support the Virginia Workers’ Compensation Commission’s determination that plaintiff’s back and neck injuries were compensable consequences of her initial shoulder, arm and wrist injuries arising from being hit in the ankle by equipment at work.

Overview

Claimant suffered a compensable injury by accident on Dec. 21, 2017, when a piece of equipment hit her ankle and knocked her to the floor. She injured her left shoulder, arm and wrist. The commission awarded compensation for her injuries on July 9, 2018.

On Aug. 31, 2018, claimant filed a supplemental claim for injuries to her back and neck “‘under the theory of compensable consequence.’

“In a pre-hearing deposition, the claimant testified that she felt pain mostly in her ankle immediately after the accident. She also experienced pain in her left shoulder and neck and had a headache. When the claimant returned to work, which required her to exert herself with her arms, she noticed significantly more soreness in her shoulder, arm, and wrist.

“According to the claimant, her back began to hurt in February or April 2018 while she was performing a specific exercise in home physical therapy. During and after that time, the claimant received treatment for pain in her left shoulder, arm, and wrist, as well as for pain in her back and neck.”

After reviewing the claimant’s testimony and the medical evidence, “the deputy commissioner issued an opinion concluding that the claimant’s back and neck injuries were compensable consequences of her December 2017 industrial accident. He found that the claimant began to experience back and neck pain in February 2018 ‘while performing exercises for her physical therapy.’

“The deputy commissioner noted the claimant’s report that, after this incident, her ‘back started “going out” and she developed pain across her shoulders, into her neck[,] and down her spine and into her low back.’ He also pointed to her acknowledgment that although she had back and neck pain in the immediate aftermath of the fall, she believed that she was ‘just sore at the time’ and that her pain worsened after physical therapy more than a month later.

“The deputy commissioner recognized that Dr. Coggins opined in July 2018 that the claimant had suffered an injury to her middle back and diagnosed a thoracic myofascial strain. Finally, he noted Dr. Coggins’ recommendation of various treatments as ‘reasonable, necessary[,] and related to the claimant’s industrial accident.’”

The commission unanimously affirmed the decision.

Discussion

“[T]he evidence, viewed under the proper standard, supports the Commission’s finding that the pain that the claimant experienced in her back and neck immediately following the accident was merely discomfort from ‘sore muscles’ and the pain that she experienced later, while performing her physical therapy exercises, was qualitatively different.

“She described the onset of the pain she experienced during her exercises as running across her shoulders and neck, on the right side, and then down her spine into the lower part of her back. She said that the pain was ‘really bad in the lower part’ and her back ‘started going out on [her]’ after that. Not until she experienced these more extreme sensations in discrete parts of her back and neck did she seek medical treatment specifically for those body parts. …

“This evidence supports the Commission’s finding that the back and neck injuries for which the claimant sought compensation occurred in 2018 and qualified as compensable consequences of her 2017 industrial accident, not as original injuries.

“The employer argues that the claimant’s own testimony establishes that she sustained the back and neck injuries in the original accident because she ‘expressly stated’ that her back and neck ‘began to hurt on the day of the [2017 accident]’ and ‘the only thing that changed from the date of the [accident] forward was the degree of the pain.’ Consequently, the employer suggests that the claim is barred by the principles set out in Massie v. Firmstone, 134 Va. 450 (1922), which it characterizes as providing that a ‘party can rise no higher than h[er own] testimony.’

“Although the employer accurately restates the general holding of Massie, that holding has been refined and applied in numerous cases in a way that leads to the conclusion that the Commission did not err in this case. … Those refinements require consideration of a litigant’s testimony ‘in its entirety and in context with all the other evidence before the Commission.’ …

“Additionally, Massie applies only to statements of fact and the natural inferences from those facts, not to ‘expression[s] of opinion.’ … Further, ‘[t]he Massie doctrine is intended to compel the exercise of good faith on the part of a litigant[,] not to penalize [that litigant] for honest mistakes or infirmities of memory.’ …

“Accordingly, ‘[i]f the testimony of a litigant[, viewed] in its entirety[,] does not unequivocally show that [her] case is without merit[,] or if reasonable [jurists] may differ as to its effect, the [fact finder] must be permitted to pass upon the testimony and the effect thereof, [along] with all the other evidence in the case.’ …

“In this case, the record supports the Commission’s finding that any discrepancies in the claimant’s testimony did not result from bad faith and merely reflected her effort, as a layperson without medical training, to describe what she experienced during and after the 2017 accident and 2018 physical therapy exercises for her original injuries.

“The Commission, on the record before it, was not compelled to find that she injured her back and neck in the original accident simply because the claimant had sore muscles in those areas in the immediate aftermath of her fall. …

“We hold that the record supports the Commission’s conclusion that the claimant injured her back and neck in home physical therapy in 2018 and was entitled to an award of benefits for those injuries as compensable consequences.”

Affirmed.

Masonite Corp., et al. v. Dean, Record No. 0516-20-2, Nov. 10, 2020. CAV (Decker) from the Virginia Workers’ Compensation Commission. Ben J. McNamara for appellant, Bradford M. Young for appellee. VLW 020-7-209, 12 pp. Unpublished.