                               COURT OF APPEALS OF VIRGINIA


Present: Judges Beales, Alston and Senior Judge Annunziata
Argued at Alexandria, Virginia


LAND N SEA DISTRIBUTING, INC. AND
 ZURICH AMERICAN INSURANCE COMPANY
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1269-09-4                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                   FEBRUARY 9, 2010
JOHN A. DeHAVEN


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Kathryn Lea Harman (Andrew M. Alexander; Semmes, Bowen &
                 Semmes, on briefs), for appellants.

                 W. David Falcon, Jr. (Chasen Boscolo, on brief), for appellee.


       Land N Sea Distributing, Inc. and Zurich American Insurance Company (employer)

appeal the decision of the Virginia Workers’ Compensation Commission awarding temporary

total disability benefits to John A. DeHaven to compensate him for disability resulting from a

workplace accident on April 12, 2005. Employer contends on appeal that the commission erred

by (1) concluding DeHaven was entitled to temporary total disability benefits beginning August

7, 2007; (2) improperly applying the “two causes rule”; (3) concluding DeHaven’s disability was

related to his shoulder injury; and (4) concluding DeHaven was totally disabled. For the

following reasons, we affirm the commission’s decision.

                                           I. Background

       We view the evidence and all reasonable inferences that may be drawn in the light most

favorable to DeHaven, the prevailing party below. Clinchfield Coal Co. v. Reed, 40 Va. App.



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
69, 72, 577 S.E.2d 538, 539 (2003). The record, so viewed, establishes that DeHaven injured his

left shoulder in a work-related accident on April 12, 2005. The parties executed an agreement to

pay temporary total disability benefits from April 27 through November 7, 2005, as well as

medical benefits for DeHaven’s shoulder injury. DeHaven’s wage loss award was terminated

November 8, 2005 because he returned to light-duty work with employer at a wage equal to or

greater than his pre-injury average weekly wage. From November 2005 through February 2007,

DeHaven worked for employer as a delivery truck driver. Because DeHaven’s workplace injury

prevented him from heavy lifting, he conducted his route with the assistance of a co-worker.

DeHaven was laid off in February 2007.

       On October 15, 2007, DeHaven filed for workers’ compensation benefits for injuries to

his left shoulder, as well as additional injuries to his left arm and neck, resulting from his April

12, 2005 accident. On October 22, 2008, a deputy commissioner determined DeHaven’s claim

for injury to his neck was barred by the statute of limitations. 1 The deputy commissioner then

applied the “two causes rule” and concluded DeHaven’s disability arose from two causes: the

work-related shoulder injury, and the time-barred and unrelated degenerative neck injury.

DeHaven was granted temporary total disability benefits beginning August 7, 2007, and

continuing, as well as ongoing medical benefits for his shoulder injury.

       On review, the commission affirmed the ruling of the deputy commissioner, concluding

the evidence established DeHaven’s left shoulder injury contributed to his disability and, under

the “two causes rule,” DeHaven’s injury was compensable. This appeal followed.




       1
           DeHaven did not appeal that ruling to the commission, and it is now final.
                                                -2-
                                           II. Analysis

        On appeal, employer contends the commission erred in concluding DeHaven was

disabled and in granting temporary total disability and medical benefits to him for his shoulder

injury. Employer also argues the commission erred in concluding DeHaven was entitled to

benefits based upon the “two causes rule” and that the evidence did not establish whether

DeHaven’s disability was caused by his left shoulder problems, his neck problems or some

combination of the two.

        “The ‘two causes rule’ addresses those cases ‘where a disability has two causes: one

related to the employment and one unrelated.’” Duffy v. Commonwealth, 22 Va. App. 245, 251,

468 S.E.2d 702, 705 (1996) (quoting Smith v. Fieldcrest Mills, Inc., 224 Va. 24, 28, 294 S.E.2d

805, 808 (1982)). “Under the two causes rule, ‘full benefits [are] allowed when it is shown that

the employment is a contributing factor.’” Id. (quoting Smith, 224 Va. at 28-29, 294 S.E.2d at

808) (alteration in original).

        Here, the evidence before the commission was comprised of medical evidence from at

least eight physicians, as well as the testimony from DeHaven who stated that problems from

both his left shoulder and his neck were preventing him from returning to work. That DeHaven

suffered an injury to his shoulder as a result of a work accident was established by Drs. Jeffrey

Cuomo and Peter Sebastian. Dr. Cuomo concluded DeHaven suffered a small tear of the glenoid

labrum in his left shoulder after “pulling a heavy tailgate” at work. Dr. Sebastian conducted an

independent medical examination (IME) and concluded DeHaven’s shoulder symptoms were

related to his work injury. 2 In addition, Dr. Felix M. Kirven conducted an IME in August 2008




        2
         Dr. Sebastian also opined that DeHaven’s neck problems resulted from degenerative
disc disease.
                                             -3-
and stated that, based on a physical examination and the medical records, DeHaven sustained a

left shoulder strain as a result of the work accident. 3

        DeHaven’s inability to work was established by the following medical evidence. In July

2007, Dr. William Russell diagnosed DeHaven with both neck and shoulder injuries including:

cervical sprain with left upper extremity radiculopathy, left shoulder strain, and left glenoid

labral tear. He concluded appellant was unable to work. In August 2007, DeHaven’s treating

physician, Dr. Amy E. Fales, also concluded DeHaven was unable to work. 4 This diagnosis

remained unchanged through the last medical report prior to review by the commission.

        Finally, DeHaven established that his inability to work was caused by his shoulder injury.

See Dollar General v. Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155 (1996) (the

commission may consider the testimony of DeHaven in establishing medical causation). After

reviewing the medical opinions, as well as the testimony of DeHaven, in the light most favorable

to the prevailing party below, we conclude the record contains credible evidence supporting the


        3
        Dr. Kirven also concluded DeHaven’s neck injury was not work related. He also
concluded DeHaven was not totally disabled from his work-related injury. By its ruling, the
commission did not agree with Dr. Kirven’s opinion that DeHaven was not totally disabled by
his work-related injury.
        4
          Employer contends the commission erred in relying on the medical records of Dr. Fales
and the other doctors from St. Paul & Biddle Medical Center because DeHaven failed to disclose
to them that he received treatment for bursitis in his left shoulder in 1999. We disagree. The
evidence established DeHaven was diagnosed with and sought treatment for bursitis on one
occasion in May 1999. After this diagnosis, DeHaven performed the duties of his job, without
assistance, for almost five years. After DeHaven’s work-related injury, he was diagnosed with a
left shoulder glenoid labral tear. Employer stipulated to DeHaven’s injury, and none of the
physicians whose opinions were presented to the commission attributed DeHaven’s disability to
bursitis. By its ruling, the commission concluded DeHaven’s failure to disclose his previous
diagnosis of bursitis did not affect his claim for injuries for his left shoulder glenoid labral tear.
As a finder of fact, the commission is entitled to weigh the evidence and determine whether the
omission of his diagnosis for bursitis rendered Dr. Fales’s medical opinion faulty. “We do not
retry the facts before the commission, nor do we review the weight, preponderance of the
evidence, or credibility of the witnesses.” Caskey v. Dan River Mills, Inc., 225 Va. 405, 411,
302 S.E.2d 507, 510 (1983).

                                                  -4-
commission’s conclusion that DeHaven’s work-related shoulder injury was a contributing factor

in DeHaven’s disability and, applying the “two causes rule,” see Leadbetter, Inc. v. Penkalski, 21

Va. App. 427, 432, 464 S.E.2d 554, 557 (1995), the commission did not err in finding DeHaven

totally disabled and entitled to temporary total disability benefits. “‘The fact that there is

contrary evidence in the record is of no consequence if there is credible evidence to support the

commission’s finding.’” Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 444, 552 S.E.2d

372, 375 (2001) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32,

35 (1991)).

       Employer also contends DeHaven’s testimony negates the physicians’ opinions that the

work accident rendered him totally disabled. DeHaven testified before the commission that he

had been actively seeking work since he was laid off in February 2007. Relying on this

testimony, employer argues disability benefits are inappropriate because benefits are intended for

people who are disabled, not for people who simply cannot find work.

       In this case, Dr. Fales, DeHaven’s treating physician, as well as Dr. Russell, determined

DeHaven’s injuries rendered him totally disabled. Although DeHaven testified that he has

continued to look for work because he “had to. I’ve been without money other than what I had

in my 401 . . . ,” he also testified that he has been unable to find any jobs he can perform within

his physical disabilities. We will not penalize DeHaven for seeking work despite his disability

due to financial necessity, and we defer to the opinion of DeHaven’s treating physicians who

concluded he was totally disabled. See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435,

439, 339 S.E.2d 570, 572 (1985) (great weight given to opinion of attending physician).

                                           III. Conclusion

       Credible evidence in the record supports the commission’s conclusions that DeHaven’s

work-related shoulder injury was a contributing factor to his disability and, applying the “two

                                                 -5-
causes rule,” that DeHaven was totally disabled and entitled to temporary total disability benefits

beginning August 7, 2007.

                                                                                    Affirmed.




                                               -6-
