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Southern Iron Works Inc. v. Wallace3/16/1993
OPINION BY JUDGE JOHANNA L. FITZPATRICK
Southern Iron Works, Inc. and Home Indemnity Company (Southern) appeal the decision of the Workers' Compensation Commission awarding Thomas Wallace (claimant) temporary total disability compensation pursuant to Code ยง 65.2-500. Southern challenges the commission's findings that claimant's hip condition was causally related to his prior compensable back injury. Southern argues that the claimant's hip injury is unrelated to the original back injury. In addition, Southern argues that claimant's hip injury resulted from cumulative trauma and, therefore, is not compensable as an injury by accident. We disagree and affirm the commission's decision.
On October 16, 1990, claimant was injured in the course of employment while "turning a steel beam." That same day, claimant was examined in the emergency room of the National Hospital for Orthopaedics and Rehabilitation. The emergency room physician diagnosed the injury as a strain to the lumbar region. On October 18, 1990, claimant returned to the hospital and was examined by Dr. Alexander. Claimant complained of severe pain in his left lower back with radiation down the left leg. Dr. Alexander diagnosed the injury as "acute lumbosacral strain and degenerative arthritis of the left hip."
A Memorandum of Agreement for compensation payment was approved by the commission on December 13, 1990. The award granted temporary total disability benefits from October 24, 1990 through November 25, 1990. In the Agreement, the injury was identified as "acute lumbosacral strain." Although claimant's back injury subsided, his arthritic hip condition continued to prevent him from returning
to work. On May 13, 1991, Dr. Maurice Cates examined the claimant and found that he was totally disabled from October 18, 1990 as a result of severe osteoarthritis of the left hip.
On July 29, 1991, claimant filed an application for hearing with the commission alleging a change in condition as a result of his earlier back injury. He sought temporary total disability benefits on the basis that the injury to his back aggravated an underlying arthritic condition in his hip. At the hearing, Southern raised the defense that the hip disability was not causally related to the accident of October 16, 1990, but was a pre-existing, unrelated condition.
The deputy commissioner found that the pre-existing hip condition was causally related to the prior accident and that the injury aggravated claimant's arthritic hip condition and was thus compensable. This finding was based on the uncontradicted opinion of Dr. Alexander, who stated that the injury to claimant's back aggravated a quiescent condition of arthritis in the left hip. The evidence showed that before the back injury, the arthritic condition was asymptomatic. After the accident, the condition became disabling.
The full commission affirmed the award on the basis that an aggravation of a pre-existing condition resulting in work incapacity is sufficient to support an award for a change in condition. The commission found that as early as October 18, 1990, the claimant was complaining of the derivative hip problem and, accordingly, determined that a causal relationship existed, even though the prior Memorandum of Agreement failed to mention the hip injury.
Under the holding in Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (1977), an award may be modified on a change of condition application, if the change is a "progression, deterioration, or aggravation of the compensa
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