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STOWE, et al. v. RICKS

STOWE, et al.




APRIL 27, 1999

Record No. 2704-98-1





Present: Judges Coleman, Annunziata and


(Darlene P. Bradberry; Breeden, MacMillan &
Green, P.L.C., on briefs), for appellants. Appellants submitting
on briefs.

(Carlton F. Bennett; Bennett and Zydron, P.C.,
on brief), for appellee. Appellee submitting on brief.

A. D. Stowe, Inc. appeals a Virginia Workers’
Compensation Commission decision affirming the deputy
commissioner’s finding that Stowe was responsible for Otis W.
Ricks’s medical treatment. Stowe contends that the commission
erred in finding (1) substantial evidence of a causal
relationship between the July 1997 accident and claimant’s
treatment and disability; (2) sufficient evidence to support
Stowe’s responsibility for Ricks’s medical treatment; (3) Stowe
was not prejudiced by the striking of its defenses, its inability
to cross-examine Ricks, and call its witnesses; and (4) there was
no mutual mistake as to employee’s average weekly wage. For the
following reasons, we affirm the commission’s decision.

On November 26, 1996, Ricks, while employed by
Heitpas Construction Company, fell approximately 28 feet (first
fall). Ricks suffered a grade 1 acromioclavicular (AC) separation
of the left shoulder and other injuries. Ricks began treatment
with orthopedic surgeon Dr. Lawrence Shall on January 22, 1997.
On February 18, 1997, Dr. Shall performed surgery to Ricks’s left
shoulder which he described as arthroscopy and subacromial
decompression. Heitpas agreed that the injury was compensable and
awarded Ricks temporary total disability benefits from November
26, 1996 through March 26, 1997. Ricks returned to full-duty work
April 17, 1997. Ricks did not miss any work even though he still
experienced some pain in his shoulder.

Dr. Shall testified that Ricks suffered a torn
ligament and a dent on the back of the humerus bone as a result
of the first fall. Until April 17, 1997, Ricks’s visits were
"routine post-op" but he was still complaining of pain,
which was unusual. At this visit, Ricks was given a cortisone
injection for residual bursitis. During a May 12, 1997 office
visit, Ricks complained of pain in a new area, which Dr. Shall
termed a "new finding," and was given another cortisone
injection. On June 30, 1997 Dr. Shall diagnosed Ricks with distal
clavicle osteolysis and believed he "might need surgery at
some point in the future. . . ." The doctor
could not determine the cause of the need for the additional

On July 17, 1997, while employed by Stowe,
Ricks fell and sustained an injury. He was doing some metal stud
framing on scaffolding when the sheetrock beneath him broke; he
fell ten feet onto his left side. Ricks testified this pain was
different from, and lower than, the pain he experienced from the
first fall. Dr. Shall testified that Ricks complained of pain
directly over his AC joint. Dr. Shall felt that Ricks had a
strain or sprain on top of his existing injury. An MRI performed
August 13, 1997 showed no significant anatomical change in
Ricks’s condition after the second fall.

Although he had returned to work and still
experienced pain from the first fall, Ricks’s symptoms
increased significantly after the second fall. As a result, he
underwent a second surgery September 23, 1997 whereby Dr. Shall
took out the end of the clavicle. Dr. Shall testified that the
first fall left Ricks susceptible to the AC joint synovitis and
clavicle osteolysis. Dr. Shall could not determine to a degree of
medical certainty whether Ricks’s condition was caused by the
second fall.

Stowe’s first contention is that Ricks did not
establish by a preponderance of the evidence that the second fall
created a new injury to the shoulder. See Code Sect.
65.2-101. Stowe claims that Ricks’s AC joint, which was corrected
by surgery, did not change after the second fall. Thus, Stowe
argues the commission erred in finding that the second fall
resulted in a new shoulder injury. We disagree.

On appeal, we construe the evidence in the
light most favorable to Ricks. See R.G. Moore Bldg.
Corp. v. Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). The determination of causation is a factual finding that
will be upheld on appeal if supported by credible evidence. See
C.D.S. Constr. Servs. v. Petrock, 218 Va. 1064, 1070, 243
S.E.2d 236, 240 (1978); James v. Capitol Steel Constr. Co.,
8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "In
determining whether credible evidence exists, [this Court will] not retry the facts, reweigh the preponderance of the evidence,
or make its own determination of the credibility of the
witnesses." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted).
"The fact that there is contrary evidence in the record is
of no consequence if there is credible evidence to support the
commission’s finding." Id.

The only medical testimony presented was that
of the treating physician, Dr. Shall. Dr. Shall noted Ricks’s new
symptoms as a result of the second fall: a sprain or strain on
top of his previous injury; a bruise on the front of his arm; and
Ricks’s inability to move his arm. Ricks testified that the pain
was in a new location, lower in the shoulder than the pain from
the first fall. Claimant’s testimony regarding the injury is a
factor to consider in weighing the evidence. See Dollar
General Store v. Cridlin
, 22 Va. App. 171, 176, 468 S.E.2d
152, 154 (1996) (claimant’s testimony may be considered to
determine causation, "especially where the medical testimony
is inconclusive"). The exacerbation of a pre-existing injury
constitutes a new compensable accident where it arises out of and
in the course of employment. See Ohio Valley Constr.
Co. v. Jackson
, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985) (a
new injury which exacerbates a previous condition resulting in
accelerated disability is compensable).

The commission found that Ricks had
sufficiently recovered from the first injury, evidenced by the
fact that he had returned to full-duty work as a construction
laborer on April 17, 1997. While Dr. Shall believed that Ricks
might need surgery in the future, it was not scheduled until
after the second fall occurred. We find sufficient credible
evidence to support the commission’s finding that the second
injury was a new compensable injury that aggravated the
pre-existing condition.

Stowe next contends that the evidence is not
sufficient to support the finding that it is responsible for
Ricks’s medical treatment by Dr. Shall, namely the September 1997
surgery. We disagree. After the second fall, Ricks was unable to
work. Dr. Shall noted that the second injury necessitated the
timing of the second surgery by exacerbating and changing Ricks’s
symptoms. Where an employee’s accident causes increased injury
and disability, even though to the same anatomic area of a
previous condition which continued to be symptomatic, the second
accident establishes an independent injury under the
Workers’ Compensation Act where it arises out of and in the
course of the employment. See Pelerin v. Hematology and
Oncology Assocs., Ltd.
, 67 O.I.C. 212 (1988). The second
injury can be independently compensable even though it aggravates
a pre-existing condition. We find sufficient credible evidence to
support the commission’s finding that Stowe is responsible for
the medical treatment Ricks received after the second fall.

Stowe next contends that it was prejudiced by
the striking of its defenses, the limitation of its right to
cross-examine Ricks and the commission’s refusal to let it call
witnesses. We disagree.

Stowe failed to proffer any of the testimony
excluded from the hearings. Where a party alleges error based on
the exclusion of evidence, it must make a proffer of proof for
the court to determine if he has been prejudiced. See City
of Richmond Police Dep’t v. Bass
, 26 Va. App. 121, 130, 493
S.E.2d 661, 665 (1997) ("Proffer facilitates appellate
review of an exclusion of testimony."). Absent a proper
proffer, we are precluded from considering this issue.

Stowe argues that it was limited in its defense
by the commission’s refusal to allow it to cross-examine Ricks.
Stowe’s defense was medical causation, and the commission limited
Stowe’s questioning to that defense alone. While Stowe could
have raised the defense of Ricks’s misrepresentation, it did not
do so.

Finally, Stowe complains that there was a
mutual mistake of fact with respect to Ricks’s average weekly
wage. The commission’s award was based on the parties’
stipulation to an average weekly wage of $540. Parties are bound
by their stipulations. See Barrick v. Board of
Supervisors of Mathews County
, 239 Va. 628, 631, 391 S.E.2d
318, 320 (1990). Stowe failed to meet its burden to produce
evidence to justify vacating the stipulation.

For the foregoing reasons, we affirm the
commission’s decision.





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