                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Chafin, Russell and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              CARNELL CARRINGTON
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0628-17-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                JANUARY 23, 2018
              AQUATIC COMPANY AND
               INSURANCE COMPANY OF THE STATE
               OF PENNSYLVANIA


                           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Michael J. Beste (Reinhardt/Harper/Davis, PLC, on brief), for
                               appellant.

                               John C. Johnson (Frith Anderson & Peake, P.C., on brief), for
                               appellees.


                     Carnell Carrington appeals a decision of the Commission denying his request for

              disability benefits. We find no error, and affirm the decision.

                                                      I. BACKGROUND

                     On appeal of Commission decisions, “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.” UPS v. Prince, 63 Va. App. 702, 704, 762 S.E.2d 800, 801 (2014) (quoting Snyder v.

              City of Richmond Police Dep’t, 62 Va. App. 405, 408, 748 S.E.2d 650, 652 (2013)). The

              Commission found in favor of Aquatic Company and Insurance Company of the State of

              Pennsylvania (collectively “employer”). The facts were as follows.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Aquatic Company hired Carrington in 1992. At the time of the hire, Aquatic Company

knew that Carrington suffered from polycystic kidney disease.1 In 2013, Carrington suffered a

compensable injury to his left arm. The injury was unrelated to his polycystic kidney disease.

The Commission entered a medical award in 2014 for the injury to his arm. In 2015, Carrington

sought temporary total disability, beginning October 2, 2014 and continuing. The Commission

summarized the facts surrounding Carrington’s claim as follow:

               He missed three weeks from work following his initial surgery and
               then returned to light duty with the employer, working 40 hours
               per week, using his right arm, beginning in November 2013. The
               parties agree the claimant has permanent work restrictions
               attributable to his left arm injury.

                       The claimant worked light duty for the employer through
               October 2, 2014. On that date, he was admitted to the hospital
               with kidney failure, a complication of his underlying polycystic
               kidney disease. He remained hospitalized through February 2015
               and after discharge, he received two months of home health care.

                        On cross-examination, the claimant agreed that prior to his
               August 2013 work accident, he was working without any
               restrictions. He was taking medication for elevated blood pressure
               and for his kidneys. He had no other health concerns. He agreed
               that “even though you had this kidney disease, you weren’t
               disabled from it” and “[i]t had not manifested itself until the
               following year when [he] had to go back to [the hospital].”

(Citation omitted) (alterations in original). The parties submitted written stipulations, including

that Carrington had “been unable to work from October 2, 2014 and continuing due to polycystic

kidney disease, while at the same time partially disabled due to his work-related left arm injury.”




       1
         This disease did not affect the type of work Carrington did for Aquatic Company,
although it did require him to miss work on occasion. Per the Commission, the disease required
that Carrington “undergo treatment every two weeks, missing work during this treatment. In
2006, the claimant underwent a kidney transplant, and he missed approximately four months
from work in connection with that surgery. He continued to undergo treatment for his kidney
condition after the transplant, attending appointments every three months.”
                                                -2-
Employer defended on the ground that Carrington’s disability was caused not by a work-related

injury, but by his unrelated kidney problem.

       The deputy commissioner awarded Carrington the requested benefits. Employer

requested review by the Full Commission, which reversed the deputy commissioner. The

Commission reasoned as follows:

              Viewed broadly, the claimant’s ultimate disability was due to the
              progression of a kidney disease which predated the accident. . . .
              Though the kidney disease predated his accident, it was not
              disabling and did not restrict the claimant’s ability to accept the
              light duty work. What ultimately compelled the claimant’s
              hospitalization and corresponding refusal of employment was
              kidney failure, a condition that manifested after the accident. . . .

                       Considering the facts before us, we find the claimant’s
              kidney failure to be a condition which arose since his accident and
              is responsible for his disability. . . . Relevant to our conclusion is
              the claimant’s two-plus decades of working for the employer with
              kidney disease but without associated restrictions. We cannot
              ignore that the condition did not prevent the claimant’s acceptance
              of the light duty work. Only after many months of steady
              employment in the light duty position did the disease progress to
              the point that it compelled the claimant to discontinue his
              employment.

                      We must also acknowledge the claimant’s concession that,
              but for his kidney failure, he would have remained employed. . . .

                      When dealing with job refusals for unrelated conditions, we
              are mindful of the wisdom of classifying as unjustified only those
              which result from causes arising since the accident. But for this
              qualification, an unprincipled employer could manufacture an
              unjustified refusal by offering light duty work incompatible with
              an employee’s pre-existing physical limitations. In such a
              scenario, an injured employee would be placed in the untenable
              position of either accepting work they were unable to perform or
              risk[ing] the loss of disability benefits by refusing the job.
              However, our holding in the present case does not implicate this
              policy or invite employer misconduct as the claimant had no
              pre-accident restrictions associated with his longstanding kidney
              condition. His ultimate hospitalization and corresponding
              unemployment was occasioned by an event, kidney failure, which



                                               -3-
               did not exist when he was injured or when his light duty job was
               offered.

(Footnote omitted). Carrington then noted this appeal.

                                         II. ANALYSIS

       Carrington assigns the following errors:

               1. The Virginia Workers’ Compensation Commission erroneously
                  held that Mr. Carrington refused selective employment despite
                  being totally disabled in connection with polycystic kidney
                  disease that the employer knew pre-existed the work accident
                  and partially disabled in connection with work-related left arm
                  injuries.

               2. The Virginia Workers’ Compensation Commission erroneously
                  rejected the parties’ stipulations that Mr. Carrington remains
                  totally disabled in conneciton [sic] with pre-existing polycystic
                  kidney disease.

(Capitalization altered).

       “A claimant [before the Commission] must prove his case by a preponderance of the

evidence.” Pro-Football Inc. v. Paul, 39 Va. App. 1, 10, 569 S.E.2d 66, 71 (2002) (quoting

Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981)).

               Furthermore, “decisions of the [C]ommission as to questions of
               fact, if supported by credible evidence, are conclusive and binding
               on this Court.” Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662,
               672, 508 S.E.2d 335, 340 (1998). Evidence to the contrary in the
               record “is of no consequence if there is credible evidence to
               support the [C]ommission’s findings.” Russell Loungewear v.
               Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). The
               consideration and weight to be given to the evidence, including
               medical evidence, are within the sound discretion of the
               [C]ommission.

Id. at 10-11, 569 S.E.2d at 71. However, “conclusions of the Commission on questions of law,

or mixed questions of law and fact, are not binding on review.” McKellar v. Northrop Grumman

Shipbuilding, Inc., 290 Va. 349, 354, 777 S.E.2d 857, 860 (2015).




                                              -4-
                                      A. Cause of Disability

       Carrington argues that he was entitled to benefits because of a concept known as the “two

causes rule,” which “provides that a condition which has two causes, one related to a work

injury, and one not, is compensable and the treatment of that condition will be the responsibility

of the employer.” Haftsavar v. All Am. Carpet & Rugs, Inc., 59 Va. App. 593, 600, 721 S.E.2d

804, 808 (2012) (quoting Papco Oil v. Farr, 26 Va. App. 66, 75, 492 S.E.2d 858, 862 (1997)).

Although the two causes rule provides the general framework for analysis, the Supreme Court

recognized an exception to the rule in American Furniture Co. v. Doane, 230 Va. 39, 334 S.E.2d

548 (1985). In that case, the Commission had “ruled that an employee was justified in refusing

selective employment because of a physical impairment arising after and unrelated to the

industrial accident for which compensation had been awarded.” Id. at 41, 334 S.E.2d at 549.

The Supreme Court reversed, and held that “[a]n employer . . . is absolved of liability for

compensation if the employee refuses selective employment because of a physical condition

unrelated to the original industrial accident and arising since the accident.” Id. at 43, 334 S.E.2d

at 550. A contrasting factual scenario was presented in James v. Capitol Steel Construction Co.,

8 Va. App. 512, 382 S.E.2d 487 (1989). There, a panel of this Court observed that Doane did not

“compel[] the conclusion that employment suitable to the employee’s residual capacity does not

require consideration of a condition which pre-existed the injury by accident and which was

obvious to the employer when the employee was hired.” Id. at 516, 382 S.E.2d at 489.

       Carrington notes that his polycystic kidney disease, while unrelated to his work injury,

pre-existed that injury. He also observes that Aquatic Company knew for decades that he

suffered from polycystic kidney disease. Thus, Carrington argues, the Doane exception to the

two causes rule does not apply. We disagree.




                                                -5-
       Here, the Commission found that, while Carrington did suffer from a condition that

predated his employment with Aquatic Company, the ultimate reason Carrington was unable to

work was a progression and worsening of that condition. As the Commission observed,

“[t]hough the kidney disease predated his accident,” the condition that “ultimately compelled the

claimant’s hospitalization and corresponding refusal of employment was kidney failure, a

condition that manifested after the accident.” (Emphases added).

               When a non-work-related disability prevents a partially disabled
               employee from returning to his or her pre-injury work or from
               accepting selective employment, for purposes of the [Workers’
               Compensation] Act, the unrelated disability is not justification for
               the employee to refuse or not to perform selective employment
               . . . . Thus, the inability of a disabled employee to do selective
               work . . . due to an unrelated disability is equivalent to an
               unjustified refusal of selective employment.

Eppling v. Schultz Dining Programs, 18 Va. App. 125, 130, 442 S.E.2d 219, 222 (1994) (citation

omitted). We agree with the Commission that an award of the requested benefits under these

circumstances would risk “converting the Act into a form of health insurance or imposing

liability for a condition unrelated to the employee’s work.” As such, the Commission did not err

when it found that the two causes rule did not apply and when it declined to award Carrington

the requested benefits.

                                    B. The Parties’ Stipulation

       Carrington also argues that the Commission wrongly rejected the parties’ factual

stipulation that he had “been unable to work from October 2, 2014 and continuing due to

polycystic kidney disease, while at the same time partially disabled due to his work-related left

arm injury.” He asserts that the Commission’s factual findings directly contradicted that

stipulation, specifically its finding that Carrington’s “ultimate hospitalization and corresponding

unemployment was occasioned by an event, kidney failure, which did not exist when he was

injured or when his light duty job was offered.”
                                               -6-
       Assuming that the Commission, as a factfinder, is not free to reject a stipulation of the

parties,2 we conclude that acceptance of the stipulation did not require the Commission to find in

Carrington’s favor.

       Here, the Commission considered the stipulation that Carrington had “been unable to

work from October 2, 2014 and continuing due to polycystic kidney disease, while at the same

time partially disabled due to his work-related left arm injury.” However, the Commission

observed, “[t]hough the kidney disease predated his accident,” the condition that “ultimately

compelled the claimant’s hospitalization and corresponding refusal of employment was kidney

failure, a condition that manifested after the accident.” (Emphases added). This finding was not

contrary to the stipulation, rather it was a narrower, more specific finding than the general

conclusion contained in the stipulation. Even assuming, without deciding, that the Commission

was bound to accept the parties’ factual stipulation, it was not required to accept such a

stipulation in a vacuum, or to blinker itself against other related evidence. We find that it was

not a rejection of the parties’ stipulation when the Commission found, essentially, that

Carrington’s inability to work was due to polycystic kidney disease which resulted in kidney

failure, a distinct event and consequence which occurred after the work-related accident.

       Carrington would have us read the stipulation to mean that employer agreed to the

compensability of the claim when it entered into the stipulation. Given that employer

consistently defended against the claim, it is clear that this was not employer’s intention. Like

the Commission, we read the stipulation as a piece of evidence to be weighed against all of the



       2
          Although “a party agreeing to a stipulation must be bound by it,” King William Cty. v.
Jones, 65 Va. App. 536, 548, 779 S.E.2d 213, 219 (2015) (en banc) (emphasis added), at oral
argument, Carrington conceded that he was unaware of any case stating that the Commission
was required to accept such a stipulation. Oral Argument Audio at 6:54-7:20 (Nov. 14, 2017).
However, we need not resolve that question, because we find that here, the Commission did not
reject the parties’ stipulation, but rather, considered it along with the other evidence.
                                                   -7-
other evidence, no more dispositive in Carrington’s favor than Carrington’s testimony that, but

for his kidney failure, he would have remained employed, is dispositive in employer’s favor.

The Commission was required to consider both pieces of evidence (and all of the other evidence)

in making its determination. Because there is evidence to support the Commission’s factual

conclusion regarding the disability, that conclusion is binding on appeal. Paul, 39 Va. App. at

10-11, 569 S.E.2d at 71.

                                       III. CONCLUSION

        The Commission did not err when it found that the two causes rule did not apply, nor did

the Commission reject the stipulation of the parties as to the cause of Carrington’s inability to

work.

                                                                                          Affirmed.




                                                -8-
