                               COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, McCullough and Senior Judge Bumgardner
Argued at Richmond, Virginia


PHILIP MORRIS USA, INC.

v.     Record No. 0648-11-2

JAMES E. BLANKENSHIP
                                                             MEMORANDUM OPINION * BY
                                                           JUDGE STEPHEN R. McCULLOUGH
JAMES E. BLANKENSHIP                                             NOVEMBER 22, 2011

v.     Record No. 0667-11-2

PHILIP MORRIS USA, INC.


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Michael N. Salveson (Andrea Zizzi; Littler Mendelson, P.C., on
                 briefs), for Philip Morris USA, Inc.

                 Brody H. Reid (Seth R. Carroll; Reid Goodwin, PLC; Geoff
                 McDonald & Associates, P.C., on briefs), for James E. Blankenship


       These consolidated appeals present two issues. The first issue is whether the Workers’

Compensation Commission (“the commission”) erred in affirming an award of benefits to

James E. Blankenship (“claimant”). The second issue is whether the rules of the commission

allow an employer unilaterally to suspend benefits upon concluding that an employee’s medical

condition has resolved and, if so, whether this practice violates the Due Process Clause of the

Fourteenth Amendment. With respect to the first question, we hold that the commission did not

err in awarding benefits to the claimant. Our resolution of the first question renders the second

question moot, and, therefore, we dismiss the second appeal.

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        BACKGROUND

                                I. SUFFICIENCY OF THE EVIDENCE

       On April 19, 2005, the claimant was injured when he attempted to lift a heavy gear box.

Shortly afterwards, he sought medical treatment for low back pain. This incident was not the

claimant’s first exposure to back pain. He underwent multiple disc surgeries in the 1970s as well

as a three-level anterior-posterior fusion in 1989. For several months, he received physical

therapy and medication, as prescribed by a board certified orthopedic surgeon,

Dr. Vanichkachorn. On August 1, 2005, Dr. Vanichkachorn noted that claimant was “doing very

well,” that he was “off of all pain medications,” and that his low back pain had “resolved.”

Dr. Vanichkachorn stated that the claimant would “do better if he had a job where he did not lift

more than 25-30 pounds. Otherwise, he can return to his normal hours.” In December of 2005,

the claimant experienced “a flare-up of his chronic back pain.” Dr. Vanichkachorn diagnosed

the claimant with chronic low back pain.

       In March of 2006, the claimant submitted to a functional capacity evaluation. This

detailed evaluation found that the claimant was capable of a return to competitive employment,

but recommended a lifting restriction of no more than 30 pounds.

       Two years later, in April of 2008, the claimant sought further treatment, again in

connection with lower back pain. Dr. Vanichkachorn recommended a return to physical therapy,

as well as medication, to treat claimant’s symptoms. This course of treatment continued for

several months. On October 13, 2008, Dr. Vanichkachorn completed a form submitted by the

employer, in which he noted that the claimant’s strain had been temporary in nature and that it

had resolved by August 2005. On December 18, 2008, however, Dr. Vanichkachorn completed

a form stating that claimant’s preexisting back condition had been “aggravated by the lift injury

on April 19, 2005.” Dr. Vanichkachorn wrote “I believe that his 25-30 lb[.] restriction is

                                               -2-
permanent,” and he checked a box on the form stating that “within a reasonable degree of

medical probability . . . Mr. Blankenship’s current condition and symptoms are directly related to

his work injury” that occurred in April of 2005.

       Dr. Vanichkachorn explained in his deposition that when he indicated the injury had

“resolved,” he was referring to “[t]he initial symptom at that time.” The claimant was reporting

fewer symptoms, and this led Dr. Vanichkachorn to conclude that claimant could return to work.

Dr. Vanichkachorn stated that he did not believe the claimant’s symptoms would ever be

resolved. The typical patient, Dr. Vanichkachorn noted, faces a certain amount of “waxing and

waning” with respect to back pain. Although ordinarily a lumbar strain does not last three years,

Dr. Vanichkachorn explained, it can last “forever,” and it is difficult to “know who is going to

end up with a chronic problem.” Dr. Vanichkachorn acknowledged that, at the time, based on

the available information, he believed the claimant’s problem was temporary and had resolved.

He stated his opinion that the 25-pound or 30-pound lifting restriction was necessary due to the

claimant’s medical condition and that it was directly related to the April 2005 incident.

Dr. Vanichkachorn further stated that, within a reasonable degree of medical probability, the

claimant’s current condition and symptoms were related to his April 2005 accident.

       On September 15, 2009, Dr. Jim Brasfield completed a review of claimant’s medical

records at the request of the employer, in which he concluded that the claimant’s pain from 2005

had “resolved.” Dr. Brasfield wrote that, “[b]ased upon the records, there is no evidence to

support the contention that the patient’s lumbar strain of April 19, 2005 ‘aggravated’ the

claimant’s preexisting lumbar spine problems.” He further opined that “the lifting restrictions

imposed . . . by Dr. Vanichkachorn are not supported by the records.”

       The claimant testified at a hearing before Deputy Commissioner Bruner. He stated that

he worked at Philip Morris for 30 years, that his work often required him to lift heavy objects,

                                               -3-
and that he occasionally would experience a sore back. For fifteen years prior to the 2005

accident, he had not seen a physician to treat his back.

       The deputy commissioner denied the employer’s application to terminate benefits,

concluding that “the employer has failed to prove that the claimant’s disability is unrelated to the

compensable accident or that his injury has resolved.” The employer appealed. The commission

affirmed the award of the deputy commissioner. The employer appeals.

                                         II. DUE PROCESS

       Following claimant’s April 2005 injury, the employer agreed on November 10, 2005 to

provide benefits. On October 22, 2008, the employer mailed an Application for Hearing

asserting that claimant’s injury had resolved. Relying on Commission Rules 1.4 and 1.5, the

employer unilaterally suspended benefits on that date. In response, counsel for the claimant

docketed a judgment in the Circuit Court for the City of Richmond on the theory that the

claimant had not been paid money he was owed. Counsel then petitioned the circuit court for a

writ of execution. The circuit court clerk and the sheriff attempted to execute the writ, but did

not successfully levy on any of the employer’s property.

       The employer obtained an emergency hearing to determine whether the employer was in

compliance with the award of benefits. The deputy commissioner concluded that the employer

was in compliance with the award and that Rule 1.5 permitted the employer to suspend an award

during the pendency of the employer’s application to terminate benefits. The deputy

commissioner also rejected the claimant’s contention that this unilateral suspension of benefits

violated his due process rights. The claimant appealed to the commission, which likewise

rejected the claimant’s interpretation of the commission’s rules and his due process argument.

This Court dismissed the appeal without prejudice on the basis that it was an interlocutory appeal




                                                -4-
over which the Court lacked jurisdiction. The Supreme Court of Virginia likewise dismissed the

appeal for lack of jurisdiction.

                                            ANALYSIS

    I. THE STANDARD OF REVIEW COMPELS AFFIRMANCE OF THE COMMISSION’S DECISION WITH
                               RESPECT TO THE CLAIMANT’S INJURY

       The employer first argues that the commission erred as a matter of law in finding that a

precautionary lifting restriction constitutes a sufficient basis for a finding of work disability. The

employer further argues that the commission erred in finding that the claimant’s ongoing back

condition remained causally related to his work injury after the treating physician determined

that the injury had “resolved.”

        “Where, as here, causal connection between an industrial accident and disability has

been established by the entry of an award, an employer has a right to apply for termination of

benefits upon an allegation that the effects of the injury have fully dissipated and the disability is

the result of another cause.” Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687,

690 (1985). The burden in this instance rests on the employer to establish by a preponderance of

the evidence that the claimant’s disability is no longer causally related to the work injury. See

Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986).

       “On appeal from a decision of the Workers’ Compensation Commission, the evidence

and all reasonable inferences that may be drawn from that evidence are viewed in the light most

favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83,

608 S.E.2d 512, 517 (2005). This standard of review is a powerful aid to the litigant who

prevailed before the commission and a difficult obstacle for the litigant who asks the Court to

view the evidence in a different light.

       Under this standard, the evidence establishes that Dr. Vanichkachorn initially believed

that the claimant’s back problems had resolved. Dr. Vanichkachorn stated that the claimant
                                                 -5-
“would do better if he had a job where he did not lift more than 20-30 pounds.” Faced with the

claimant’s continuing symptoms, Dr. Vanichkachorn reassessed this diagnosis in light of the

evidence. He explained that the claimant’s current condition and symptoms are related to his

April 2005 accident. Dr. Vanichkachorn stated that the lifting restriction is directly related to the

2005 accident, that this restriction is still in place, and that the restriction is medically necessary.

        The employer’s argument is chiefly based on a snapshot of the evidence rather than the

entirety of the evidence in the record. This is not a situation involving a claim that had fully

resolved but which was accompanied by common sense precautionary restrictions to prevent a

recurrence of injury. 1 Rather, when examined under the applicable standard of review, the

evidence, including the testimony from Dr. Vanichkachorn and the functional capacity

evaluation, establishes an ongoing injury that prevents the claimant from lifting 25 to 30 pounds.

Furthermore, under the posture of this case, the allocation of the burden of proof is significant.

The burden rested with the employer. The commission was not required to accept the testimony

of Dr. Brasfield, who did not personally examine the claimant and whose expertise and opinion

was obtained by the employer.

        In light of the standard of review, we affirm the decision of the commission.

                       II. THE CLAIMANT’S DUE PROCESS ARGUMENT IS MOOT

        Claimant argues that the commission’s rules should not be read to permit an employer to

unilaterally suspend benefits prior to a hearing, but if they are so read, such a suspension would

violate the Due Process Clause. We decline to reach this argument because it is moot. In fact,

the claimant’s appeal is doubly moot: first, he received a hearing, thereby mooting the claim that


        1
         For this reason, we find unpersuasive the employer’s reliance on Testerman v. Thomas
Builders, Inc., No. 192-39-73 (Va. Workers’ Comp. Comm’n Jan. 7, 2000); Holley v. Newport
News Shipbldg. & Dry Dock Co., No. 165-21-58 (Va. Workers’ Comp. Comm’n July 12, 1999),
and other cases.

                                                  -6-
his procedural due process rights were violated, and, second, his benefits have been restored,

ending any controversy between the parties. 2 Consequently, any opinion on the subject would be

purely advisory. As we explained in Virginia Dep’t of State Police v. Elliott, 48 Va. App. 551,

554, 633 S.E.2d 203, 204 (2006) (quoting Hankins v. Town of Virginia Beach, 182 Va. 642,

643-44, 29 S.E.2d 831, 832 (1944)), 3 when

                 “[t]here is no actual controversy between the litigants, or that, if it
                 once existed it has ceased to do so, it is the duty of every judicial
                 tribunal not to proceed to the formal determination of the apparent
                 controversy, but to dismiss the case. It is not the office of courts to
                 give opinions on abstract propositions of law, or to decide
                 questions upon which no rights depend, and where no relief can be
                 afforded.”

                                            CONCLUSION

       We affirm the decision of the commission declining to terminate benefits, and we further

dismiss the claimant’s appeal as moot.

                                                                       Record No. 0648-11-2 affirmed;

                                                                      Record No. 0667-11-2 dismissed.




       2
           Code § 65.2-707 also provides for the award of interest to a claimant in this situation.
       3
         Although in narrow circumstances courts may address moot questions, Elliott, 48
Va. App. at 554, 633 S.E.2d at 204-05, we have no occasion to do so here. First, the claimant
does not argue that such an exception applies. Second, there is no factual record upon which to
determine whether an exception applies.
                                               -7-
