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Kenbridge Construction Co. v. Molina11/9/1993
Per Curiam
Kenbridge Construction Co., Inc. contends that the Workers' Compensation Commission erred in finding (1) that Ralph Molina was not able to return to his regular employment as of April 5, 1991; and (2) that Molina sustained a change in condition rather than a new injury on April 29, 1991. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
On July 10, 1990, Molina sustained a compensable work-related lower back injury for which the commission entered an award. On April 18, 1991, the employer filed an application requesting that compensation be suspended upon the ground that Molina's treating neurologist, Dr. Jeri Carr, had released him to return to work without restrictions as of April 5, 1991.
Molina began medical treatment with Dr. Carr on August 14, 1990. Until April 5, 1991, based upon Molina's subjective complaints of pain and inability to perform physical tasks, Dr. Carr concluded that Molina was incapable of returning to work without restrictions. Dr. Carr released Molina to return to light duty work as of March 25, 1991, with a restriction on lifting and a time limitation of four hours per day. On April 5, 1991, in a letter to the insurance carrier, Dr. Carr indicated that she had reviewed a videotape of Molina repairing a hole in the ceiling of a porch and that she had reviewed the February 15, 1991 report of independent medical examiner Dr. Anthony Debs. Based on this information, Dr. Carr stated that Molina's ability to perform these tasks "suggested" that he was able to return to work without restrictions.
Molina testified that he did not see Dr. Carr between March 20 and April 29, 1991 and that he was unaware of Dr. Carr's April 5, 1991 letter. He returned to light duty work on April 15, 1991 as a supervisor for a landscaping company. He worked part-time, but was unable to work on some days because of lower back and leg pain. On April 29, 1991, he picked up a twenty-two pound weed-eater and, as he twisted to place it on a truck, he felt pain in his back in the same area as the pain he had experienced on July 10, 1990. The pain was the same as he had suffered since the July 10, 1990 incident, but was more severe. However, he had experienced pain of the same severity within a month prior to April 29, 1991.
On April 29, 1991, Molina returned to Dr. Carr for follow-up care. He informed Dr. Carr of the April 29, 1991 incident and he complained of pain radiating from his left buttock to his calf. Dr. Carr noted that she had released Molina to full time work, but that he had re-injured his back. Dr. Carr prescribed bed rest for one week, with an anticipated return to light duty the following week. On May 21, 1991, Dr. Carr noted that Molina had continuing complaints of back pain radiating to the left leg and she referred him to a physiatrist, Dr. Janet Singer.
On May 30, 1991, Dr. Singer reported that Molina should remain out of work for six to eight weeks. In an August 14, 1991 Attending Physician's Report, Dr. Singer related Molina's current disability to the July 10, 1990 accident and opined that he would not be able to return to work until October 30, 1991.
In a June 18, 1991 report, Dr. Lincoln A. German, a chiropractor who had treated Molina from July 11, 1990 to August 15, 1990, noted that his May 6, 1991 examination revealed that Molina suffered from symptoms identical to those he had complained of prior to discontinuing chiropractic care.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.
Page 1 2 Virginia Personal Injury Attorneys
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