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Danville School Board v. Chilton3/26/1996
MEMORANDUM OPINION* BY JUDGE LARRY G. ELDER
The Danville School Board (employer) appeals from the Workers' Compensation Commission's (commission) award of benefits to Thelma H. Chilton (claimant) for a change in condition related to a compensable injury by accident. Employer contends that (1) claimant's claim for temporary partial disability benefits was statutorily time-barred, and (2) claimant's evidence did not establish the requisite causal connection between her partial disability and her compensable injury. Disagreeing with employer, we affirm the commission's decision.
I.
FACTS
Claimant, who was employed by employer as a part time cafeteria worker , sustained a compensable back injury on November 13, 1991, while lifting a twenty-five pound box. Employer accepted the injury as compensable, and awards were entered for various periods of temporary total disability. Claimant last received disability compensation on October 7, 1992.
After suffering her back injury, claimant consulted numerous physicians in an attempt to treat her lower back pain. Orthopaedic surgeon Dr. Alton F. Gross first treated claimant in November of 1991 and diagnosed a lumbosacral strain. Neurosurgeon Dr. John A. Jane examined claimant beginning on September 2, 1992, concluded that "there is absolutely nothing wrong" with claimant, and released her to "full activity."
On November 15, 1993, Dr. H. C. Eschenroeder, Jr. examined claimant and advised her that she probably suffered from a residual soft tissue problem in her lower back. Dr. William J. Richardson examined claimant on February 7, 1994, noted degenerative disc disease at L4-5 and L5-S1 discs, but did not recommend surgery. Dr. Eschenroeder again examined claimant on May 2, 1994, and suggested claimant rely on a TENS unit and nonsteroids for pain relief. Dr. Eschenroeder concluded that claimant would continue to suffer from partial, chronic disability. In a letter dated October 31, 1994, Dr. Eschenroeder stated that he could not determine the etiology of claimant's symptoms "and would be inclined to defer to the physicians who saw her at the time of her injury."
Unsatisfied with Dr. Eschenroeder's treatment, claimant sought an opinion from Dr. Steven M. Fiore, who noted claimant's workplace injury and her treatment course since that time. After a discogram performed on October 31, 1994 again showed degenerative process at L3-4, L4-5, and L5-S1 discs, Dr. Fiore recommended sedentary work and physical therapy. Dr. Eschenroeder, on July 7, 1994, and again on September 12, 1994, opined that claimant's back pain limited her to "sedentary work activities."
Claimant testified at the deputy commissioner's hearing that she suffered from back pain since the accident and both before and after her chiropractic treatment, and that the pain continued to the present day.
Claimant filed a change in condition claim on August 29, 1994, seeking temporary total benefits and other appropriate benefits, and on December 9, 1994, seeking resumption of temporary partial disability benefits from September 1, 1994 and continuing, plus payment of bills related to Dr. Fiore's treatment. The deputy commissioner found that claimant timely filed her application but denied her claim because she did not causally relate her original injury to the 1994 disability. The full commission reversed and awarded benefits, concluding that claimant met her burden of causality. Employer now appeals to this Court.
II.
APPLICATION NOT TIME-BARRED
Code ยง 65.2-708 states that a review based upon a change in condition shall not "be made after twenty-four months from the
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