VIRGINIA:

IN THE WORKERS’ COMPENSATION COMMISSION

DAVID R. SMITH, )
)
Claimant, )
)
vs. ) VWC File No: 229-75-128
)
BAT TILE CO., )
)
Employer, )
)
And )
)
MUTUAL OF TN AMERICAN INS. CO., )
)
Insurer.

CLAIMANT’S REPLY TO DEFENDANT’S POSITION STATEMENT

David Smith, by counsel, presents the following in response to defendant’s Request for

Review.

PERTINENT FACTS AND PROCEDURAL HISTORY

This case is before the Commission on the Application of the Employer, filed October 13,

2008, for refusal of medical care and payment for surgery. A request to amend the initial

application to add Failure to Pay for the Surgery was made by letter of March 24, 2011 and

granted by the Deputy Commissioner on March 25, 2011. The denied surgery was performed by

the authorized treating physician, Dr. Morgan Hyde, on January 20, 2011. Since the insurer

denied coverage, the surgery was paid for by claimant’s own health insurance carrier. The

surgery was specifically requested by the treating physician, Dr. Hyde and denied by the carrier.

See notes of Dr. Hyde in the medical record including those of August, 31, 2008, January 29,
2011, January, 7, 2011, and March 30, 2011. The employer is Bat Tile Co., and the carrier is

Mutual of tn American Ins. Co., referred to as defendants hereafter.

Mr. Smith received an Award on January 9, 2007 which was based on an Agreement to

Pay Benefits which delineated the injury as, among other things, “low back strain”. The back

injury led to two surgeries; one on March 13, 2007 and the second on April 11, 2008.

In her April 14, 2011 Opinion, Deputy Commissioner Miller found that the claim was not

barred by the statute of limitations as raised by defendants at the hearing. Further, she found the

claimant had borne his medical causation burden and that the treatment in question is the

carrier’s responsibility under the Two Causes Rule.

LAW AND ARGUMENT

There was Ample Evidence to Support the Deputy Commissioner’s Findings

I. Statute of Limitations

“Code §65.2-603 should be construed liberally in favor of the claimant, in harmony with

the Act’s humane purpose.” Papco Oil Co. v. Farr, 26 Va. App. 66 (1997). In this case, the

claimant has had multiple treatments and his care, diagnosis, and secondary medical problems

have compounded the complexity of his efforts toward recovery. The original claim in this case

was timely mailed on August 17, 2006, and briefly referred to the occurrence of the accident and

the nature of the injury, which included the low back. On January 9, 2007, an Award Order was

entered and delineated that, “Lifetime Medical benefits are hereby awarded for reasonable,

necessary and authorized medical treatment causally related to the April 12, 2006 injury” and it

was accompanied by an Agreement to Pay. This Agreement to Pay referred to a “low back

strain.”

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 The defendants submit the case of Jones v. U.S. Senate Federal Credit Union, to support

their position that the Award Order fails to encompass treatment for claimant’s back. The

holding in Jones, defines the abandonment doctrine. Jones v. U.S. Senate Federal Credit Union,

55 Va. App. 227 (2008). The case is inapplicable to Mr. Smith’s claim, as the fact patterns are

not analogous. In the Jones case, the claimant’s knee injury was not at all identified in the

Memorandum of Agreement. The exact language only identified, “[c]ervical and dorsal strains;

left arm and hand injury.” Jones v. U.S. Senate Federal Credit Union, 55 Va. App. 227 (2008).

In Jones, the word “knee” doesn’t even appear in the Memorandum of Agreement. The

Memorandum of Agreement in the present case, specifically identifies the word “back.” There is

no such similarity in the Jones case, as a claim for the specific injury of the “knee” in that case

was not made until ten years after the 1997 worksite injury. Clearly, the Jones case supports the

doctrine of abandonment, but in this case the facts demonstrate that there was no abandonment as

the back was an express element of the initial Award.

The cases cited by the Deputy Commissioner are consistent with and supported by the

line of cases cited in this brief. See, e.g., Shawley v. Shea-Ball Constr. Co., 216 Va. 442 (1975)

(employer entitled to timely notice of injuries); Corporate Res. Mgmt. V. Southers, 51 Va. App.

118 (2008) (two year deadline to file or claim barred).

II. Causation

The holding in Farmington Country Club v. Marshall, states that “[t]he causal

connection” necessary for compensability is established when it is shown that an employee had

received a compensable injury which materially aggravates or accelerates a pre-existing latent

disease. Farmington Country Club v. Marshall, 47 Va. App. 15 (2005). In the Deputy

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Commissioner’s findings of fact and conclusions of law, she concluded that the claimant had

established his burden on the issue of medical causation. Opinion at 5.

The Deputy Commissioner properly framed the issue and found ample support in Dr.

Hyde’s opinion regarding causation. See Dr. Hyde’s signed response letter in the medical record

dated March 30, 2011. Among other things, Dr. Hyde found, according to the Deputy

Commissioner, that the surgery had multiple purposes and the injury the surgery was to address

had multiple causes. Additionally, she made the finding that the adjacent level stenosis was

compensable on the basis that it was, in part, due to an aggravation of the pre-exiting condition

by the workplace accident. Opinion at 9. At the time of Mr. Smith’s original back injury, he had

a chronic history of degenerative disease of the lumbar spine which was materially aggravated

and accelerated by this injury. “This was a significant contributing factor to the need for all three

(3) surgeries, in part do[sic] to the worsening of the degeneration and progression of the

degeneration to adjacent levels of the lumbar spine and resulting spinal stenosis.” Dr. Hyde

affirmed exactly this statement in its entirety on March 30, 2011. This finding is consistent with

the case law. This finding is implicit in the case law. For example, the court in Farmington

concluded that the treating physician concluded that there was no direct causation between the

initial workplace injury and the second condition. Farmington Country Club v. Marshall, 47 Va.

App. 15 (2005). In this case, the Deputy Commissioner concluded that Dr. Hyde’s opinion about

the aggravation of a pre-existing condition established a basis to find that the January 20, 2011

surgery was compensable.

Naturally, once the basis for causation is found, the financial responsibility for treatment,

even surgery, is established. The defendants claim that the Deputy Commissioner misapplied the

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Two Causes Rule. In fact, she found causation and further found that since the surgery is related

to the injury, the defendant must be responsible for it.

Dr. Hyde adopted a very specific definition of lumbar spinal stenosis that gave a greater

transparency to the logic on which his final causation opinion was based. See the medical record

for the definition entitled, “Lumbar Spinal Stenosis.” Dr. Hyde’s opinion is based upon ample

medical evidence and his numerous reports, all documenting his care of Mr. Smith. Dr. Hyde’s

opinion as he communicated it to counsel for the plaintiff, is the view which is most consistent

with reason and justice. Dr. David Wiles only saw Mr. Smith on two occasions. The last contact

by exam or otherwise that Dr. Wiles had with the claimant was on May 21, 2008. Dr. Hyde has

a more informed opinion about the necessity of the third surgery as he has had numerous contact

with Mr. Smith. Since Dr. Wiles never saw Mr. Smith after the surgery, the opinions of Dr.

Wiles are based on record review and are made without any contact with the patient for 244 days

before the surgery. Without a medical exam closer in time before the third surgery and a post

surgery exam, Dr. Wiles’ opinions lack a strong basis and are therefore not persuasive. Further,

the defendant states the third surgery was opined not related per Dr. Hyde’s letter of March 29,

2011. In fact, that is an error. This was erroneously attributed to Dr. Hyde, yet was a written

opinion note given in Dr. Wiles’ own handwriting. See letter in medical record dated March 29,

2011.

The Deputy Commissioner found that Dr. Hyde’s second set of opinions, those which he

explained and gave a more detailed basis of causation to claimant’s attorney, as persuasive in this

case. By accepting Dr. Hyde’s March 30th, opinions, the Deputy Commissioner adopted that

view which is most consistent with reason and justice. The Deputy Commissioner considered

both letters from these seemingly conflicting medical opinions, the claimant’s testimony and still

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concluded that the doctor’s last word on the matter was the opinion that was more persuasive in

determining the issue of causation as per the holding of the case law. See, e.g., Pilot Freight

Carriers, Inc. V. Reeve, 1 Va. App. 435 (1985) (greater weight to treating physicians); American

Filtrona Co. v. Hanford, 16 Va. App. 159 (1993) (employer responsible for all medical flowing

from primary injury); Jewel Ridge Coal Corp. v. McGlothlin, 2 Va. App. 294 (1986)

(aggravation of pre-existing is compensable).

The doctrine of compensable consequences is applicable to an analysis of this case.

“Where such a casual link exists, “the doctrine of compensable consequences extends the

coverage of the Workers’ Compensation Act to the subsequent injury because the subsequent

injury ‘is treated as if it occurred in the course of and arising out of the employee’s

employment.’” Barholow Drywall Co. v. Hill, 12 Va. App. 790 (1991). The doctrine applies

“[w]hen the injury does not arise on the day of the accident, but instead develops as a direct

consequence of an initial injury.” Paul Johnson Plastering v. Johnson, 265 Va. 237 (2003).

Every natural consequence that flows from the primary injury is compensable. Comm./Central

Va. Training Center v. Cordle, 37 Va. App. 232 (2001).

Dr. Hyde went ahead with surgery and it was initially a great success. Normally the

Deputy Commissioner must make a somewhat tenuous judgment on this issue of causation

before any procedure takes place. In that circumstance there is an element of uncertainty as

some of the facts regarding the true nature of the claimant’s condition cannot be known until

observations are made beneath the skin during surgery.

Employer’s reliance on Chandler v. Georgia-Pacific Corp., is misplaced, as that case was

about injury to a different part of the body while the employer in this case concedes that the

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dispute in this case is the same area of the body, but claims it is a different injury. Chandler v.

Georgia-Pacific Corp., 96 WC UNP 1458015 (1996).

Similarly, the employer’s citation of Burton v. Old Dominion Freight Line, Inc., is

inapplicable to the present case, as what they claim that the case held, is in actuality, mere dicta.

Burton v. Old Dominion Freight Line, Inc., 09 WC UNP 2344008 (2008). In the Burton case,

the court stated clearly that, “[t]he ‘two causes’ rule is applicable to disability, which was not

properly before him and was improperly addressed in his Opinion.” Burton v. Old Dominion

Freight Line, Inc., 09 WC UNP 2344008 (2008). Nowhere in any of the opinions cited by the

employer does the case law state, “this legal doctrine applies only to disability” or application of

the “two causes” rule to causation is an abuse of discretion.

It was claimed by Dr. Wiles that he could “find no documentation of change of LBP after

injury date.” Defendants’ Designation of Record at Tab 3. Even a cursory review of the medical

record in this case disproves Dr. Wiles allegation and calls into question the extent of his

memory of plaintiff’s medical history. Our response to this claim is that Dr. Wiles himself

memorialized the fact of Mr. Smith’s increased low back pain in his medical record of May 7,

2008, “[h]e states that they were working on a concrete mixer when it tipped over and he was

pinned on the ground by it. At any rate, he began having significant low back pain at that

time.” Emphasis added. This is of course, an increase from “mild back pain” that Dr. Wiles, in

the same medical record, identifies as the only known prior back problem occurring, as he notes,

from a “4-wheeler accident in 2000.” Additionally, Dr. Hyde’s office noted, “[t]he patient had

the immediate onset of back pain. . .“ in their records as early as April 18, 2006 and is consistent

with the admitting diagnosis memorialized in the ER record of April 16, 2006.

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 On the issues surrounding the necessity and advisability of the third surgery, Dr. Wiles

himself memorialized his agreement with Dr. Hyde course of action, in his medical record of

June 15, 2008, “[w]e therefore agree with Dr. Hyde’s assessment that we would recommend

decompression and posterior lumbar interbody fusion at the L3-4 and L4-5 level as treatment.”

Dr. Wiles just believed it to be elective. In the very same record, Dr. Wiles equivocates and

agrees with surgery, “[h]owever, if he has to have surgery at the L3-4 level for decompression of

the stenosis and if the patient wishes to proceed with this, certainly we would recommend

including this to be fused.” In fact, Mr. Smith did want surgery on the medical counsel that his

pain could be reduced.

The employer complains that, “[w]ithin two years of the April 12, 2006 injury, no

additional injuries were added to the lifetime medical award.” It should be noted that the

lifetime medical award, documented in the Award Order of January 9, 2007, explicitly states,

“Lifetime Medical benefits are hereby awarded for reasonable, necessary and authorized medical

treatment causally related to the April 12, 2006 injury.” See Award Order.

The Deputy Commissioner, in her support of her Findings of Fact and Conclusion of Law

quotes the case of American Filtrona. In that case, the court held that in general, the employer

and carrier are responsible for “all medical consequences and sequelae that flow from the

primary injury.” American Filtrona Co. v. Hanford, 16 Va. App. 159 (1993). In this case, the

Deputy Commissioner found that there was not a simple A causes B relationship to Mr. Smith’s

injuries but that Dr. Hyde’s opinions, which she affirmed, demonstrated “that there were multiple

factors that necessitated the surgery on January 20, 2011.” Opinion at 9. The basis for her

opinion was rooted in Dr. Hyde’s detailed explanation of Mr. Smith’s injury and associated

causes set out in his letter of March 30, 2011. There, he cites multiple factors including the need

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to remove original hardware, perform further fusion, and, specifically, that the stenosis was in

part the result of the material aggravation of a pre-existing condition. Implicitly, the Deputy

Commissioner’s opinion states that the items Dr. Hyde cites are compensable consequences of

the original injury. In support of this conclusion, the Deputy Commissioner also cites the case of

Jewel Ridge Coal Corp. Opinion at 9. In the Jewel case, as in this case, the court analyzed a

pre-exiting condition issue and found similarly for the claimant. Jewel Ridge Coal Corp. v.

McGlothlin, 2 Va. App. 294 (1986). Unlike this case, the court supported a finding of

compensable where the workplace injury was shown to have actually resulted in the sudden and

obvious injury to the employee merely from employment “exertion.” Jewel Ridge Coal Corp. v.

McGlothlin, 2 Va. App. 294 (1986). In this case, Dr. Hyde opinions were based on a much more

direct link of causation, in that he directly stated that Mr. Smith’s workplace injury aggravated a

pre-existing condition of which the surgery was performed to treat. Ultimately, the Deputy

Commissioner’s opinion rejected a compensable consequence of a compensable consequence

analysis on the basis that the surgery had multiple purposes and the injury that the surgery was to

address had multiple causes. Of critical importance is her finding that the adjacent level stenosis

was compensable on the basis that it was in part due to an aggravation of the pre-exiting

condition by the workplace accident itself, therefore not subject to the compensable consequence

of a compensable consequence analysis. Opinion at 9.

CONCLUSION

For the above stated reasons, the April 1, 2011 Opinion of Deputy Commissioner Miller

should be upheld.

Respectfully submitted,

BY _________________________
Matt Krumtum

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 Counsel for Claimant

Bill Mullins
Front Royale, VA 24212

CERTIFICATE OF SERVICE

I, Bill Mullins, do hereby certify that the foregoing was mailed via certified mail, #7006
2150 0001 3968 7258, return receipt requested to Iris C. Peace, Clerk, The Virginia Workers’
Compensation Commission, 1000 DMV Drive, Richmond, Virginia 23220 and that a true and
correct copy of the foregoing was mailed to Angela F. Smith, Esquire MIDKIFF, MUNCIE &
ROSS, P.C., 300 Arboretum Place, Suite 420, Richmond, Virginia 23236 on this 12th day of
July, 2011.

________________________
BILL MULLINS

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