VIRGINIA: 03/02/2004
IN THE WORKERS’ COMPENSATION COMMISSION
RIGOBERTO V. RODRIGUEZ, Claimant
Opinion by DUDLEY
Commissioner
v. VWC File No. 205-63-07
FACCHINA CONSTRUCTION COMPANY, INC., Employer
HARTFORD ACCIDENT AND INDEMNITY COMPANY, Insurer
Daniel P. Barrera, Esquire
for the Claimant.
(by priority mail)
Mark D. Crawford, Esquire
for the Defendants.
(by priority mail)
REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and Commissioner Dudley at Richmond, Virginia.
The employer has requested Review of the Deputy Commissioner’s May 19, 2003, Opinion awarding temporary total disability benefits and medical benefits. The employer assigns error to the findings that the claimant injured his neck and left shoulder on May 18, 2001. We affirm.
The claimant, a carpenter foreman, sustained a compensable injury by accident to his larynx on May 18, 2001. The employer paid temporary total disability benefits from May 19 through July 8, 2001.
On October 30, 2002, the claimant sought benefits for injuries to his neck and left shoulder, in addition to the larynx injury. The employer defended on the basis that there was no compensable injury to the neck or left shoulder.
At the Hearing, the claimant testified that on the day of the accident, he was stripping a wooden board.1 He stated that: [T]he board broke and it hit me on my neck. (Tr. at 5). The claimant indicated that the impact occurred under his chin in his neck area. He said that he felt pressure from the board in his left arm and he could not hold the wood down. The claimant described that when the board broke, it destroyed [his] neck and he fell backwards (Tr. at 7). He explained that his shoulder twisted backwards and that he experienced a numbing pain.
The claimant explained that he was hospitalized after the incident. He said that his major complaints were problems with his neck and arm. The claimant testified that his treating physicians primarily focused upon reconstructing his throat.
Steven W. Ludden, supervisor, testified to working with the claimant when he returned to work after the injury. Ludden said that he never mentioned injuring his shoulder. He stated that the claimant only commented about his throat and neck.
Timothy Berres, safety officer, testified that the claimant complained to him about his neck and throat problems on February 8, 2002. Berres stated that he discussed the injuries with him and that he reported shoulder problems. He did not recall the claimant specifying what caused the shoulder condition. Berres said that he observed him lifting objects, despite his claim that he could not lift due to his shoulder injury.
Carlos R. Lizama, project superintendent, testified to speaking with the claimant nearly every morning. Lizama stated that he complained about his hurt throat, but no other injuries. He denied that the claimant mentioned a neck problem.
The pertinent medical record reflects that on May 18, 2001, the claimant received treatment for a fractured larynx. This treatment while hospitalized included a tracheotomy, laryngoscopy, esophagoscopy, open reduction of the laryngeal fractures, and a stent placement. The hospital discharged the claimant to his home on May 22, 2001.
Dr. Deborah J. Doyle, otolaryngologist, assisted in the claimant’s May 18, 2001, surgeries. Dr. Doyle’s office began monitoring the claimant’s recovery in July 2001. On January 18, 2002, the claimant complained to Dr. Doyle about pain and weakness of the posterior neck which radiated down his left arm. Dr. Doyle recommended an orthopedic consultation.
Dr. Tushar C. Patel, orthopedic surgeon, evaluated the claimant on January 31, 2002, for neck and left upper extremity complaints. The claimant reported that he fractured his larynx in an industrial accident on May 18, 2001, and that [h]e has had pain in his left arm. Dr. Patel diagnosed rotator cuff tendonitis.
On March 11, 2002, the claimant described suffering left shoulder and arm weakness to Dr. Doyle. Dr. Doyle diagnosed neck and arm pain with a possible compression of the cervical spine. She recommended an MRI scan of the claimant’s cervical spine and shoulder.
On June 5, 2002, Dr. Doyle responded to a question by claimant’s counsel. She affirmed that the recommended MRI scan was causally related to the industrial accident.
On August 8, 2002, Dr. Patel advised that he had evaluated the claimant for neck pain with radiation down his left upper extremity. Dr. Patel stated that a recent MRI scan showed mild disc bulges at the C4-C5 level. Dr. Patel concluded that the claimant’s problems emanated from his left rotator cuff, which was a result of his fall and trauma.
An MRI scan was taken on August 14, 2002. The history noted that the claimant suffered left shoulder symptoms for past year. The patient sustained a work-related injury. No prior shoulder surgery. The study showed tendinosis, perhaps a small tear in the superior glenoid labrum, and degenerative arthrosis in the left acromioclavicular joint.
Dr. Robert M. Dombrowski, orthopedist and associate of Dr. Patel, began treating the claimant on September 5, 2002, for complaints of shoulder pain. The claimant informed Dr. Dombrowski about the industrial accident and that the board forced his arm up in an abduction position. Dr. Dombrowski diagnosed a partial rotator cuff tear and a superior labral tear. Dr. Dombrowski recommended physical therapy and medication.
By letter dated November 5, 2002, Dr. Doyle wrote that she had recently evaluated the claimant for follow-up of a laryngeal fracture and shoulder trauma from an accident which occurred at work on May 18, 2001. Dr. Doyle diagnosed dysphagia, throat tightness, a tethered scar, and left shoulder pain and trauma. She suggested that the claimant participate in physical therapy for his shoulder condition.
On November 27, 2002, Dr. Patel responded to the claimant’s counsel’s question. He affirmed that the claimant’s left arm and shoulder complaints were proximately caused by the industrial accident.
Dr. Joseph D. Linehan, orthopedic surgeon, performed an independent medical examination of the claimant on January 2, 2003. The claimant told Dr. Linehan that the board broke and struck him in the throat and left shoulder. He complained of left shoulder pain and denied suffering a previous injury to the shoulder. Dr. Linehan opined that the claimant’s shoulder symptoms were not related to the industrial accident. He explained:
[N]o where in the medical records do I find any reference to pain in the shoulder at the time of the original injury or in the physical therapy following his surgery for a fractured larynx. The first reference to shoulder problems appears to be during a visit to . . . Dr. Patel.
. . . .
If there was indeed an acute injury to the left shoulder in the accident of May 18, 2001, there would be documentation of shoulder injury/pain in the contemporaneous medical records. Additionally, the x-rays of the left shoulder show an old healed fracture of the left clavical, which could predispose to AC arthritis at some point later.
The Deputy Commissioner determined that the claimant proved that his compensable injury by accident caused injuries to his neck, throat/larynx, and left shoulder. He granted more weight to the opinions of Dr. Doyle, Dr. Patel, and Dr. Dombrowski.
We initially note that we decline to assess an attorney’s fee and costs against the employer as requested by the claimant within his written statement. We are not persuaded that the employer, from its prospective, defended or filed an appeal based on unreasonable grounds. See Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 427 S.E.2d 215 (1993).
Hence, we consider the merits of the case. The claimant bears the burden of proving that his shoulder and neck complaints are causally related to the industrial accident. Watkins v. Halco Engineering, Inc., 225 Va. 97, 300 S.E.2d 761 (1983). The Commission relies primarily on medical evidence to determine the mechanism or cause of an injury. Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d 633 (1968).
The record indeed reflects that the claimant did not mention shoulder or neck pain (separate from his larynx symptoms) to his treating physicians after the May 2001 injury by accident for many months. In fact, it appears that his first complaints were voiced to Drs. Patel and Doyle in January 2002. However, the claimant continued to report these symptoms, and his treating physicians related the complaints to the compensable accident. The claimant never indicated or suggested that there was another cause of his symptoms.
Significantly, Dr. Patel and Dr. Doyle reported in November 2002 that the claimant’s shoulder condition resulted from the industrial accident. Similarly, Dr. Doyle ordered an MRI scan of the shoulder/cervical spine and related the need for this diagnostic study to the accident. This medical evidence is more persuasive than the testimony of co-workers who asserted that the claimant did not tell them about neck or shoulder complaints in relation to the injury.
Dr. Linehan disputed that the claimant’s shoulder condition was causally related to the industrial accident. The Deputy Commissioner weighed the conflicting medical evidence and gave more weight to the claimant’s treating physicians. We agree with this assessment, and find no grounds to reverse the Deputy Commissioner’s determination. See Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991) (Medical evidence is subject to the Commission’s consideration and weighing.).
The Opinion below is AFFIRMED, with the modification that the attorney’s fee to be paid by the claimant to Daniel P. Barrera, Esquire, is increased to a total of $750.
- This matter is hereby removed from the Review docket.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt.
cc: Mr. Rigoberto V. Rodriguez
7600 Oxon Hill Road
- Oxon Hill, MD 20745
- Facchina Construction Company, Inc.
- 9320 W & W Industrial Road
- La Plata, MD 20646
- Hartford Accident and Indemnity Company
- Workers’ Compensation Claim Center
- P.O. Box 1097
- Hunt Valley, MD 21030
1 Kathy Funes translated for the claimant at the Hearing.
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