Virginia Lawyers Weekly VA Lawyers Weekly
The Virginia Workers’ Compensation Commission correctly awarded an injured school bus driver temporary total disability benefits for a five-day period. The commission properly determined her change in condition was causally related to a work-related car accident four years earlier.
Background
On May 9, 2017, claimant school bus driver was injured when a vehicle rear-ended her school bus. She began treatment for neck and back injuries. An employer-furnished orthopedist “diagnosed cervical, lumbar, and shoulder strains provided an and referred claimant to Dr. Rommaan Ahmad, a physician in the same office.
“The Commission awarded lifetime medical benefits[.] …
In September 2017, claimant was involved in another car accident but suffered no injuries and there was no change in her condition.
Between October 2017 and June 2021, claimant treated with several different medical care providers for neck and back problems, including Patient First and Dr. Ahmad.
Claimant’s neck and back pain worsened. “When asked to pinpoint when her pain had increased, claimant testified that it was ‘end of April and May’ 2021.
“Claimant could not get another appointment with Dr. Ahmad, so she returned to Patient First on June 4, 2021, and received a note excusing her from work starting that day, with the stated reason being ‘injury.’ The note also referred to a ‘muscle injury’ and a ‘likely viral infection,’ and it indicated that claimant could return to ‘[l]ight activity’ on June 6 and ‘regular activity’ on June 12.
“On June 7, claimant followed up with her primary care physician, Dr. Reza Golesorkhi, at Potomac Internal Medicine. Dr. Golesorkhi signed a ‘Return to Work / School’ note stating that claimant could not return to work until June 10.
“Although the note itself did not specify a reason or diagnosis for the work excuse, claimant testified that she and the doctor discussed the pain in her neck and back, and it was her understanding that ‘[h]e recommended [her] … not to go back to work.’
“Claimant also received a referral order from Potomac Internal Medicine on June 7 … listing a diagnosis of torticollis and referring her to an orthopedist. She did not work from June 4 through June 9 and returned to work on June 10, 2021.”
The commission awarded total disability benefits from June 4 to June 9, 2021. The employer appealed.
Change in condition
“When an employee files a change-in-condition application, ‘two questions arise: (1) has there been a change in the employee’s capacity to work; [and] (2) if so, is the change due to a condition causally connected with the injury originally compensated.’ …
“The employer contends the Commission erred in finding that claimant proved a ‘change in condition’ and inability to work from June 4 through June 9, 2021. …
“In ruling that claimant sustained a compensable change in condition, the Commission found that she was removed from work by Patient First on June 4, 2021, ‘due to her injury.’
“The Commission concluded that the medical provider’s work excuses, coupled with claimant’s unrebutted testimony that she was removed from work due to back and neck pain in June 2021, carried her burden to prove temporary total disability.”
Cannot retry case on appeal
“The employer contends that claimant’s change-in-condition evidence, consisting of three single-page medical records from June 2021 as well as her own testimony, did not offer credible evidence of a compensable incapacity to work.
“The employer argues that the Patient First note was not probative because although it mentioned ‘injury’ and ‘muscle injury’ as the reasons for excusing claimant from work starting June 4, 2021, it provided no details of the nature and timing of any injury. …
“Although the words ‘injury’ and ‘muscle injury’ are not precise, other evidence in the record – including claimant’s testimony – provides context establishing that the Patient First note was referring to claimant’s 2017 work injury.
“Claimant testified that she went to Patient First after trying to see Dr. Ahmad, who had been treating her work-related injury and pain since 2017. She denied experiencing a new injury since 2017. From this evidence, the Commission could reasonably infer that ‘injury’ referred to the 2017 work injury. …
“The employer also argues that claimant’s two medical records from her June 7, 2021 visit to Potomac Internal Medicine ‘offered no credible evidence of disability.’ One document, the ‘Return to Work / School’ note signed by her primary care physician, specified that claimant could not return to work until June 10, 2021.
“The employer discounts the document because it did not specifically mention the 2017 work accident or the reason for the work excuse. The employer asks this Court to view the note in isolation, divorced from other evidence contextualizing it – particularly, claimant’s testimony.
“Claimant explained that she saw her primary care physician as a follow-up to her Patient First visit, they discussed her back and neck pain, and he advised staying home from work until June 10, 2021. In context, the work-excuse note provided credible evidence of claimant’s disability. …
“[T]he employer’s contentions misapprehend this Court’s standard of review. ‘In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses.’ …
“[T]he Commission credited claimant’s testimony that she was removed from work due to back and neck pain in June 2021, and we are precluded from drawing new inferences from her testimony and reevaluating her credibility on appeal.”
Causation
“The employer also contends that claimant did not prove a causal connection between the 2017 work injury and the 2021 disability. Similar to its challenge to the sufficiency of the evidence proving the disability, the employer argues that claimant’s ‘self-serving testimony regarding her subjective pain complaints’ and the work-excuse notes ‘unaccompanied by contemporaneous notes’ failed to prove causation. …
“[T]he Commission did find evidence linking claimant’s 2017 work accident to her 2021 disability: (1) the work-excuse notes, particularly the Patient First note attributing claimant’s incapacity to ‘injury,’ and (2) claimant’s unrebutted testimony that she was removed from work due to back and neck pain in June 2021 and had experienced no injury-causing incidents other than the 2017 work accident. …
“[C]redible evidence in the record supports the Commission’s factual finding of causation[.]”
Affirmed.
Prince William County Public Schools, et al. v. Brooks, Record No. 0248-22-4, Oct. 11, 2022. CAV (O’Brien) From the Virginia Workers’ Compensation Comm’n. Megan Kerwin Clark for appellant. Andrew S. Kasmer for appellee. VLW 022-7-456, 12 pp.
