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Parkview Nursing and Rehabilitation Center v. Hickman12/23/2003
MEMORANDUM OPINION
Parkview Nursing and Rehabilitation Center and its insurer (hereinafter referred to as "employer") contend the Workers' Compensation Commission erred in finding that Audrey Dorethea Hickman (claimant) proved that she sustained a change in condition causally related to her May 15, 1999 compensable back injury and that she was entitled to an award of temporary total disability benefits beginning April 30, 2001 and continuing. Upon reviewing the record and the parties' briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
Change in Condition/Causation
"General principles of workman's compensation law provide that 'in an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Factual findings made by the commission will be upheld on appeal if supported by credible evidence. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
" hanges [in condition] include 'progression, deterioration, or aggravation of the compensable condition . . . appearance of new or more serious features failure to recover within the time originally predicted . . . .'" Armstrong Furniture v. Elder, 4 Va. App. 238, 243, 356 S.E.2d 614, 616 (1987) (quoting 3 A. Larson, The Law of Workmen's Compensation ยง 81.31(a) (1983)).
" hen an employee files an application for reinstatement of disability benefits, two questions arise: (1) has there been a change in the employee's capacity to work; (2) if so, is the change due to a condition causally connected with the injury originally compensated." King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984).
In granting claimant's March 6, 2001 application, the commission found as follows:
We agree that the claimant has proven that as of April 30, 2001, her disability was causally related to her May 15, 1999, compensable injury by accident. Dr. [Arthur W.] Wardell's notes reflect that he consistently attributed her condition to the work-related accident. He mentioned the accident when he began treatment in 1999 and never suggested another cause of the claimant's ongoing back problems. Moreover, after each visit, Dr. Wardell indicated that the bill was filed with the workers' compensation insurer. Finally, the claimant denied having experiencing any intervening accidents or injuries since May 1999, and the employer presented no evidence to the contrary. Thus, we find that she is entitled to a resumption of benefits beginning April 30, 2001.
Claimant's testimony, coupled with Dr. Wardell's office notes, provides credible evidence to support the commission's finding that claimant sustained a compensable change in condition as of April 30, 2001. That evidence supports the commission's finding that claimant's condition worsened, causing her to be taken out of work as of April 30, 2001.
Claimant testified that after Dr. Wardell released her to return to work on January 13, 2000, she tried to work for three different employers. However, each time she did so, she was unable to continue due to her compensable back injury. She testified that whenever she tried to work, she exacerbated her back condition. Five months before the October 18, 2001 hearing, she began using a cane to walk. In addition, beginning in March 2001, she underwent lumbar epi
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