                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Alston
Argued at Alexandria, Virginia


HYATT REGENCY CRYSTAL CITY AND
 HYATT CORPORATION
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1007-10-4                                  JUDGE ROSSIE D. ALSTON, JR.
                                                                 JANUARY 25, 2011
CHARLES SPENCER


                  FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                      Lynn McHale Fitzpatrick (Franklin & Prokopik, P.C., on brief),
                      for appellants.

                      No brief or argument for appellee.


       Hyatt Regency Crystal City and Hyatt Corporation (employer) appeal a decision of the

Workers’ Compensation Commission (the commission) awarding benefits to Charles Spencer

(claimant). Employer alleges the commission erred in finding that claimant’s right shoulder

injury was a consequence of a compensable work accident and not a pre-existing injury.

       On appeal, employer asserts two assignments of error. First, employer alleges that the

commission erred, as a matter of law, “in finding that [claimant’s] claimed medical treatment

was causally related to a compensable work injury suffered by [c]laimant while he was employed

[by employer].” It argues that the commission’s reliance on the medical opinions of two doctors

to conclude that claimant’s injury was caused by a compensable work injury was in error

because claimant failed to accurately report his medical history to the doctors. Second, employer

alleges that the commission erred, as a matter of law, “in finding that [claimant’s] claimed


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
medical treatment and disability was not related to [c]laimant’s pre-existing condition.” We

disagree with employer and affirm the commission’s award.

                                        I. BACKGROUND 1

       On appeal from the Workers’ Compensation Commission, “we view the evidence in the

light most favorable to the party prevailing below[,]” in this case, the claimant. Tomes v. James

City Fire, 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002).

       So viewed, the evidence showed that on October 4, 2007, claimant slipped on a wet floor

in the men’s restroom at his place of employment and fell backward, hitting his right shoulder

against a sink. Claimant was employed as a cook at his place of employment.

       In April 2007, before claimant suffered this fall, he had sought treatment from Dr. Dan

Weingold, a doctor at Commonwealth Orthopaedics & Rehabilitation, for right shoulder and

right knee pain. Dr. Weingold diagnosed claimant with right shoulder pain “secondary to

subacromial impingement syndrome” and also possible “acromioclavicular joint arthritis.”

Dr. Weingold treated claimant with an injection of Depo-Medrol combined with plain Xylocaine

and Marcaine. He recommended rest, ice, medication, a gradual return to activity level, and a

rehabilitative exercise program. He also reported that surgical intervention involving

“arthroscopic evaluation, with possible acromioplasty, distal clavicle excision and rotator cuff

debridement or repair” was recommended in some cases of this injury.

       On May 5, 2007, claimant returned to Dr. Weingold for treatment of his right shoulder.

Claimant reported improvement, but he continued to have “a nagging sensation with overhead

use.” Dr. Weingold diagnosed claimant with “[r]ight shoulder pain secondary to rotator cuff


       1
         As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.

                                                 -2-
tendonitis, [acromioclavicular] joint arthritis, clinically improved.” Dr. Weingold discussed

claimant’s treatment options with him, which included possible surgery. Claimant felt his

symptoms were not significant enough to undergo surgery. He opted to participate in a home

exercise program and follow up with Dr. Weingold in a few months.

       As noted, claimant suffered his fall at work, during which he hit his right shoulder on a

sink, on October 4, 2007. Claimant sought medical attention immediately after his work

accident at Concentra Medical Centers, where Dr. Edward A. Seidel evaluated him. Dr. Seidel

reported in his notes that claimant’s past medical history was “noncontributory.” He diagnosed

claimant with a shoulder contusion, gave him an injection of Toradol, and referred him to

physical therapy for a “right shoulder strain.”

       Claimant sought medical treatment from Dr. Seidel again on October 18, 2007.

Regarding claimant’s past medical history, Dr. Seidel reported in his notes, “[R]eviewed with

patient and is unchanged from date of initial evaluation.” Dr. Seidel diagnosed claimant with

possible cervical radiculopathy, cervical strain, and shoulder pain.

       On October 24, 2007, claimant visited Dr. Peter Vu. The medical record from this visit

noted that claimant “reports he had previous injury of the same shoulder about 4 months ago at

work but did not report it . . . so he went to see a local orthopedist who treated him conservative

[sic] with 2 injections.” Dr. Vu diagnosed claimant with right shoulder pain and a contusion. He

recommended claimant undergo an MRI and discontinue physical therapy.

       Claimant subsequently underwent an MRI of his shoulder. The radiologist who

interpreted the results of the MRI noted,

               The abnormality described in the right acromioclavicular joints is
               due to early degenerative arthrosis. Marrow edema is noted in the
               distal clavicle and in the acromion. This may be secondary to the
               arthritic process. Superimposed previous traumatic injury
               involving the right acromioclavicular joint may be in part
               responsible for the marrow edema described above.
                                                  -3-
       Dr. Vu treated claimant again on November 8, 2007. After reviewing the MRI, Dr. Vu

diagnosed claimant with a right shoulder contusion and right shoulder pain. He referred claimant

to Dr. Edward C. Rabbitt, an orthopedist.

       Claimant saw Dr. Rabbitt on January 30, 2008. Dr. Rabbitt noted that claimant was

referred for “issues that developed after a fall at work” and indicated that his past medical history

was “negative.” Dr. Rabbitt diagnosed claimant with “contusion and sprain of the shoulder

leading to impingement syndrome.” Dr. Rabbitt administered a cortisone shot and recommended

physical therapy. He noted that he believed claimant would eventually need surgery, including

“an arthroscope of the shoulder, decompression of the subacromial space, removal of the spurs,

and possible [acromioclavicular] joint resection.”

       On March 19, 2008, claimant returned to Dr. Rabbitt for an injection of Marcaine and

Decadron and received “a diagnosis of tendonitis, impingement, and rotator cuff tendonitis” in

his right shoulder. Dr. Rabbitt discussed surgical intervention with claimant, including “an

arthroscopic decompression.” Dr. Rabbitt again recommended surgery at the end of April 2008.

       On June 23, 2008, claimant returned to Dr. Weingold. For past medical history,

Dr. Weingold stated, “Medical History Sheet was reviewed and signed. It is negative for cancer,

heart attack, stroke, history of infectious diseases.” Dr. Weingold diagnosed claimant with “right

shoulder pain secondary to a combination of acromioclavicular joint arthritis and rotator cuff

impingement, previously treated and symptomatically improving.” Dr. Weingold discussed

surgical treatment with claimant, including “arthroscopy, subacromial decompression, and

possible distal clavicle excision” as well as addressing “any rotator cuff pathology.” When

claimant returned to Dr. Weingold for a follow-up appointment on August 11, 2008,

Dr. Weingold listed claimant’s shoulder injury as “right rotator cuff impingement.”




                                                -4-
       At the request of employer, claimant underwent an independent medical examination on

August 20, 2009 by Dr. Robert O. Gordon, an orthopedic surgeon. Claimant denied any history

of previous right shoulder symptoms or injuries. Dr. Gordon opined, “I believe that [claimant]

does have some right shoulder impingement which he had previously and is not related to what

occurred on October 4, 2007. His ongoing subjective complaints are related to his preexisting

condition.”

       At a hearing before the deputy commissioner, claimant testified that he did not recall any

previous injuries or problems with his shoulder before October 4, 2007, when he fell at work.

He also testified that he did not remember ever receiving treatment for his shoulder before the

date of the accident. The deputy commissioner held that the evidence was sufficient to establish

a compensable injury by accident and that claimant’s symptoms and treatments were causally

related to the October 4, 2007 fall. It found that although claimant was treated for right shoulder

symptoms previously, he had not been treated for approximately five months prior to the October

4, 2007 fall and was under no restrictions at the time of the fall. It also found that claimant’s

testimony regarding the fall was uncontradicted and consistent with reports to medical providers.

The deputy commissioner awarded claimant medical benefits for as long as necessary pursuant

to Code § 65.2-603.

       Employer appealed to the full commission. The commission found that claimant was

receiving conservative treatment for tendonitis of the right shoulder at the time of the October 4,

2007 fall. However, it also credited the testimony of Drs. Rabbitt and Siedel and found that the

fall claimant sustained at his workplace on October 4, 2007 caused claimant to suffer a right

shoulder strain that was distinct from his pre-existing tendonitis. The commission relied upon

Dr. Rabbitt’s diagnoses of a contusion and sprain of the shoulder leading to impingement

syndrome and Dr. Seidel’s diagnoses of right shoulder strain. It found that the surgery

                                                -5-
recommended by Dr. Rabbitt was related to the sprain that led to the impingement syndrome, not

claimant’s pre-existing tendonitis and affirmed the deputy commissioner’s award of medical

benefits to claimant.

                                  II. INJURY BY ACCIDENT

        To recover benefits under the Virginia Workers’ Compensation Act, Code §§ 65.2-100

through 65.2-1310, for an injury, a claimant must prove, by a preponderance of the evidence, that

he sustained an injury by accident that arose out of and in the course of employment. Kane

Plumbing, Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988) (citing Code § 65.1-7;

Bradley v. Philip Morris, U.S.A., 1 Va. App. 141, 143, 336 S.E.2d 515, 516 (1985); Richmond

Mem’l Hosp. v. Crane, 222 Va. 283, 285, 278 S.E.2d 877, 878 (1981)). “An ‘injury by accident’

has three components: (1) an identifiable incident; (2) a sudden mechanical or structural change

in the body; and (3) a causal connection between the incident and the bodily change.” Id. (citing

Bradley, 1 Va. App. at 144, 336 S.E.2d at 517).

        Employer argues that the commission erred in finding that the claimant suffered an injury

by accident because there was no causal connection between claimant’s fall at work and his

shoulder injury; instead, employer argues, claimant’s shoulder injury was a pre-existing injury.

Furthermore, employer argues that because claimant failed to report his previous shoulder injury

to Drs. Seidel and Rabbitt, the commission erred in relying on the doctors’ medical reports to

conclude that claimant’s shoulder injury was caused by the October 4, 2007 fall.

                                     A. Standard of Review

        Whether a claimant has suffered an injury by accident is a mixed question of law and

fact. Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 167, 543 S.E.2d 619, 621 (2001)

(citing R & R Constr. Corp. v. Hill, 25 Va. App. 376, 378-79, 488 S.E.2d 663, 664 (1997)).

While

                                               -6-
               [f]indings of fact by the Workers’ Compensation Commission will
               be upheld on appeal if supported by credible evidence . . . whether
               those facts prove the claimant suffered an “injury by accident” is a
               question of law. The commission’s finding on the legal question is
               not conclusive and binding upon [this Court], but is properly
               subject to judicial review.”

Id. at 167-68, 543 S.E.2d at 621 (internal citations omitted).

       In determining whether a claimant has established the three components of an injury by

accident, the commission’s determination of causation is a finding of fact. Tex Tech Indus., Inc.

v. Ellis, 44 Va. App. 497, 504, 605 S.E.2d 759, 762 (2004). “On appellate review, the factual

findings of the commission are binding if they are supported by credible evidence.” Wagner

Enter., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). “If there is evidence, or

reasonable inferences can be drawn from the evidence, to support the Commission’s findings,

they will not be disturbed on review, even though there is evidence in the record to support a

contrary finding.” Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348

S.E.2d 876, 877 (1986). In reaching its factual determinations, the commission is “free to decide

which evidence was more credible and should be weighed more heavily.” Thompson v. Brenco,

Inc., 38 Va. App. 617, 624, 567 S.E.2d 580, 584 (2002). This Court “does not retry facts,

reweigh . . . the evidence, or make its own determination of the credibility of the witnesses.”

Wagner Enter., 12 Va. App. at 894, 407 S.E.2d at 35.

                         B. Medical Opinions of Drs. Seidel and Rabbitt

       Based upon the medical records of Drs. Seidel and Rabbitt, the commission found that

claimant suffered a right shoulder strain caused by his fall on October 4, 2007, and thus proved

he suffered an injury by accident arising out of and in the course of his employment. Employer

argues that Clinchfield Coal Co. v. Bowman, 229 Va. 249, 329 S.E.2d 15 (1985), is applicable in

this case. In Clinchfield Coal Co., 229 Va. at 250, 329 S.E.2d at 15, the issue was whether the

claimant’s changed knee condition was causally related to his 1978 industrial accident; the
                                                -7-
evidence regarding the claimant’s condition consisted of two reports from the treating physician.

In the first report, the physician stated “it is reasonable from [the claimant’s] history to medically

assume that he sustained this injury [to his knee] in the [1978 accident].” Id. at 250-51, 329

S.E.2d at 16 (emphasis in original). However, when the physician reviewed the claimant’s

previous medical records, he determined that the cause of the claimant’s condition was an earlier

1975 incident. Id. at 251, 329 S.E.2d at 16. This opinion was contained in the second report. Id.

The Supreme Court of Virginia held that the commission erred in attributing any weight to the

first report because the physician’s assumption that the condition was related to the 1978

accident was based on a faulty premise and he had rendered only one opinion based on the facts.

Id. at 252, 329 S.E.2d at 16. In Sneed v. Morengo, Inc., 19 Va. App. 199, 205, 450 S.E.2d 167,

171 (1994), this Court applied Clinchfield Coal Co. to stand for the proposition that “[w]henever

a physician’s diagnosis flows from an assumption that rests upon a faulty premise,” such as

incomplete medical history, “such as misinformation provided by a claimant, the commission

may refuse, and often will be required to refuse, to attribute any weight to that opinion.”

Employer argues that, in this case, the commission erred in relying upon the medical opinions of

Drs. Seidel and Rabbitt because claimant failed to inform them of his previous shoulder injury.

We disagree.

       Viewed in the light most favorable to claimant, the evidence does not show that claimant

failed to inform Drs. Seidel and Rabbitt of his previous shoulder injury. In his medical notes,

Dr. Seidel wrote that claimant’s past medical history was “noncontributory.” Dr. Rabbitt noted

that claimant’s past medical history was “negative.” Employer argues these references show that

claimant did not tell Dr. Seidel or Dr. Rabbitt about his past injury. However, use of the terms

“noncontributory” and “negative” regarding past medical history do not necessarily establish that

claimant did not inform the doctors of his previous shoulder problems. Rather, those terms can

                                                -8-
reasonably be interpreted to indicate the lack of foundation for alternative causative

circumstances.

       “Noncontributory” is defined as “making or involving no contribution; as . . . making no

contribution to a medical diagnosis.” Webster’s Third New International Dictionary 1536

(Philip Babcock Gove, et al. eds., 1993). The word “negative” has multiple meanings. Although

it does include the meaning “denoting the absence of something,” id. at 1513, it also means “not

affirming the presence of the organism or condition in question <a ~ diagnosis>,” id. Based on

these definitions, the evidence does not necessarily show that claimant failed to inform

Dr. Seidel and Dr. Rabbitt of his past shoulder symptoms. Based on the deputy commissioner’s

finding that the claimant’s testimony was “consistent with reports to medical providers” and the

commission’s reliance on the doctors’ opinions, the deputy commissioner and full commission

must have interpreted these notations to record the doctors’ opinions that claimant’s past

shoulder problem was insignificant to their medical evaluation of claimant’s current shoulder

injury, and not that claimant failed to report his medical history accurately. 2

       Viewed in the light most favorable to claimant, the evidence does not show that claimant

failed to report his past shoulder problems to Drs. Seidel or Rabbitt. As a result, Clinchfield


       2
         Furthermore, even if the evidence did show that claimant failed to report his previous
shoulder symptoms to Drs. Seidel and Rabbitt, Clinchfield Coal Co., 229 Va. at 251-52, 329
S.E.2d at 16, does not require that the commission disregard the doctors’ medical opinions. In
Amelia Sand Co. v. Ellyson, 43 Va. App. 406, 410, 598 S.E.2d 750, 752 (2004), this Court stated
that “Clinchfield Coal does not stand for the proposition that doctors must have the entire
medical history of an individual before they can state a valid opinion about the cause of a
condition.” Instead, it limited the applicability of Clinchfield Coal Co. to cases in which an
expert “revises and rejects [an earlier opinion based on assumptions] in favor of a new opinion
which is based on a more complete review of the facts.” Id. In this case, Drs. Seidel and Rabbitt
did not base their medical opinions on “assumptions,” but rather upon claimant’s description of
his October 4, 2007 fall, which the deputy commissioner found to be accurate. In addition,
Drs. Seidel and Rabbitt never revised and rejected their opinion that claimant’s shoulder injury
was caused by the October 4, 2007 fall. Thus, Clinchfield Coal Co. does not require the
commission disregard the medical opinions of the doctors, even if claimant failed to report his
past shoulder problems to them.
                                                 -9-
Coal Co. is inapplicable. The commission did not err in relying upon Drs. Seidel’s and Rabbitt’s

medical opinions to conclude that claimant’s injury was caused by his October 4, 2007 fall.

       Employer argues that the commission erred when it failed to give greater weight to the

opinion of Dr. Gordon that claimant’s shoulder injury was not caused by the workplace accident.

The specific question of causation “‘raised by “conflicting expert medical opinions” is one of

fact.’” Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 268 (2000)

(quoting Eccon Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981)). Arguably

more exacting than the general proposition that appellate courts should defer to the factual

findings of the commission, see Wagner Enter., 12 Va. App. at 894, 407 S.E.2d at 35,

“[q]uestions raised by conflicting medical opinions must be decided by the commission,” Penley

v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). As the finder of

fact, the commission was free to give more weight to the medical opinions of Drs. Seidel and

Rabbitt than those of Dr. Gordon. This Court has recognized the importance of deferring to the

commission’s determinations of the weight of conflicting medical evidence, “based upon the

‘unwisdom of an attempt by . . . [courts] uninitiated into the mysteries [of the medical science

debate] to choose between conflicting expert medical opinions.’” Georgia-Pacific Corp., 32

Va. App. at 5, 526 S.E.2d at 268-69 (quoting Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421

S.E.2d 872, 874 (1992)) (alterations in original). Thus, the commission did not err in giving

lesser weight to Dr. Gordon’s opinion.

                                    C. Pre-Existing Condition

       Employer also argues that the commission erred in determining that claimant’s injury was

caused by his October 4, 2007 fall and not by his pre-existing condition. The commission found

that, while claimant was undergoing treatment for tendonitis before the fall, Dr. Seidel diagnosed

him with a “right shoulder strain” and Dr. Rabbitt diagnosed claimant with a “contusion and

                                               - 10 -
sprain of the shoulder leading to impingement syndrome” after the fall and unrelated to his

pre-existing condition. However, employer argues that because there was no significant

difference between claimant’s diagnosis and treatment before and after the workplace accident,

this finding was in error. We disagree.

       Based on the diagnoses and treatments authorized by Drs. Seidel, Rabbitt, and Vu, there

was credible evidence to support the commission’s finding that claimant’s diagnoses and

treatments before and after the workplace accident were different. Before the workplace

accident, Dr. Weingold diagnosed claimant with “right shoulder pain which appears to be

secondary to subacromial impingement syndrome and also possibly [acromioclavicular ] joint

arthritis.” Dr. Weingold also diagnosed “rotator cuff tendonitis, [acromioclavicular] joint

arthritis, clinically improved.” In contrast, after the workplace accident, Dr. Seidel diagnosed

claimant with a shoulder contusion, possible cervical radiculopathy, cervical strain, and shoulder

pain. Dr. Vu also diagnosed claimant with right shoulder pain and a contusion. Dr. Rabbitt

diagnosed claimant with “contusion and sprain of the shoulder leading to impingement

syndrome.” Finally Dr. Weingold assessed claimant again after the workplace accident,

diagnosing him with “right shoulder pain secondary to a combination of acromioclavicular joint

arthritis and rotator cuff impingement.” Thus, both before and after the accident, claimant was

diagnosed with “right shoulder pain,” and Dr. Weingold diagnosed claimant with

acromioclavicular joint arthritis both before and after the accident. However, after the accident,

Drs. Seidel, Rabbitt, and Vu also diagnosed claimant with a “contusion,” “sprain,” “possible

cervical radiculopathy,” and “cervical strain,” conditions with which he had not been diagnosed

previously. As a result, there was credible evidence that claimant’s diagnoses before and after

the workplace accident were different.




                                               - 11 -
       Similarly, there is credible evidence that claimant’s medical treatment before and after

the workplace accident differed. Before the workplace accident, Dr. Weingold treated claimant

with an injection of Depo-Medrol combined with plain Xylocaine and Marcaine. Dr. Weingold

recommended rest, ice, medication, and a gradual return to activity level. He mentioned the

possibility of surgery involving “arthroscopic evaluation, with possible acromioplasty, distal

clavicle excision and rotator cuff debridement or repair.” After the workplace accident, claimant

was treated with physical therapy and injections of Toradol and cortisone. Dr. Rabbitt

recommended “an arthroscope of the shoulder, decompression of the subacromial space, removal

of the spurs, and possible [acromioclavicular] joint resection.” Thus, both before and after

claimant’s October 4, 2007 fall, claimant was given injections. However, the injections before

and after the fall consisted of different drugs.

       The surgical recommendations before and after the workplace accident also differed.

Although arthroscopic evaluation of claimant’s shoulder was suggested both before and after the

workplace accident, only after the workplace accident was decompression of the subacromial

space, removal of spurs, and possible acromioclavicular joint resection recommended.

Furthermore, even if claimant’s treatment did not change to a significant degree before and after

the accident, this does not necessarily mean that claimant did not suffer a new injury, as the same

treatment may be appropriate for more than one injury. Viewed in the light most favorable to

claimant, claimant’s diagnoses and treatments provided credible evidence that his shoulder injury

was not related to his pre-existing condition.

                                        III. CONCLUSION

       Because the evidence viewed in the light most favorable to claimant does not show that

claimant failed to reveal his past shoulder problems to Dr. Seidel and Dr. Rabbitt, we hold that

Clinchfield Coal Co., 229 Va. at 251-52, 329 S.E.2d at 16, is inapplicable and the commission

                                                   - 12 -
did not err in relying upon the doctors’ opinions to conclude that claimant’s shoulder injury was

caused by his October 4, 2007 fall. In addition, there was credible evidence to support the

commission’s finding that claimant’s shoulder injury was caused by his October 4, 2007 fall and

not related to his pre-existing condition. Thus, credible evidence supported the commission’s

finding that claimant suffered a compensable injury by accident during the course of his

employment with employer. Accordingly, we affirm.

                                                                                        Affirmed.




                                              - 13 -
