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Miller v. Fairfax County Board of Supervisors9/14/1993
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Robert F. Miller sustained an injury to his lower back on November 30, 1984, which was accepted by his employer as compensable. On December 4, 1991, Miller filed an application for hearing seeking to compel payment of medical expenses associated with physical therapy rendered to him by Ballston Physical Therapy and Sports Medicine Associates ("Ballston"). Miller contends that the commission erred in finding his employer not responsible for payment of these medical expenses on the basis that the physical therapy performed by Ballston on his left shoulder was not proven to be related to his compensable November 30, 1984 industrial accident.
Following his November 30, 1984 injury, Miller came under the care of orthopedic surgeon Robert T. Gaughan. Miller initially complained of sudden severe back pain. Dr. Gaughan diagnosed a resolving lumbar strain. From 1984 through April 1986, while under the care of Dr. Gaughan, Miller made complaints of pain related to the lumbar area, middle area and thoracic area of his back, his right leg, knee and foot, and his left hip.
There is nothing in the medical records to indicate that Miller suffered from any shoulder pain until May 1986, approximately eighteen months post-injury. In fact, in April 1986, Dr. Gaughan noted that Miller had full range of motion in his shoulders. Additionally, in December 1985, Dr. Harvey Schwartz, to whom Miller had been referred by Dr. Gaughan for evaluation of his back pain, noted that Miller's shoulder motion was normal. Dr. Schwartz did note some degenerative changes in Miller's lumbar and thoracic areas.
Other than the notation by Dr. Gaughan of right shoulder pain in May 1986, there are no further documented complaints of shoulder pain in 1986. Not until April 1987, did Miller complain of pain in his left shoulder. At that time, Miller related to Dr. Cap H. Oliver that he had injured his left arm and shoulder while lifting a door. Miller did not establish that this injury was related to his original back injury. In November 1987, Dr. Oliver ordered physical therapy to increase the range of motion in Miller's left shoulder.
The remaining medical records reveal that Miller was seen on May 25, 1990 and March 23, 1992 by Dr. Oliver. In March 1992, after not having seen Miller for two years, Dr. Oliver noted that Miller's physical therapy, ordered in 1987, was related to Miller's original back injury in 1984, in view of the fact that the original back injury involved Miller's shoulders.
Based upon this record, the commission found that Miller failed to establish a causal connection between his industrial accident in 1984 and his shoulder complaints in 1987.
On appellate review, the evidence must be viewed in the light most favorable to the party prevailing before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The commission's finding as to whether Miller's physical therapy was related to his industrial accident is a finding of fact, which is binding on review if supported by credible evidence. Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). Unless we can say as a matter of law that Miller's evidence was sufficient to sustain his burden of proof, then the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 17
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