                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Coleman, Annunziata and Bumgardner


A. D. STOWE AND
 RELIANCE NATIONAL INDEMNITY COMPANY
                                            MEMORANDUM OPINION * BY
v.   Record No. 2704-98-1               JUDGE RUDOLPH BUMGARDNER, III
                                                APRIL 27, 1999
OTIS WAYNE RICKS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Darlene P. Bradberry; Breeden, MacMillan &
             Green, P.L.C., on briefs), for appellants.
             Appellants submitting on briefs.

             (Carlton F. Bennett; Bennett and Zydron,
             P.C., on brief), for appellee. Appellee
             submitting on brief.


     A. D. Stowe, Inc. appeals a Virginia Workers' Compensation

Commission decision affirming the deputy commissioner's finding

that Stowe was responsible for Otis W. Ricks's medical

treatment.     Stowe contends that the commission erred in finding

(1) substantial evidence of a causal relationship between the

July 1997 accident and claimant's treatment and disability; (2)

sufficient evidence to support Stowe's responsibility for

Ricks's medical treatment; (3) Stowe was not prejudiced by the

striking of its defenses, its inability to cross-examine Ricks,

and call its witnesses; and (4) there was no mutual mistake as


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
to employee's average weekly wage.       For the following reasons,

we affirm the commission's decision.

        On November 26, 1996, Ricks, while employed by Heitpas

Construction Company, fell approximately 28 feet (first fall).

Ricks suffered a grade 1 acromioclavicular (AC) separation of

the left shoulder and other injuries.      Ricks began treatment

with orthopedic surgeon Dr. Lawrence Shall on January 22, 1997.

On February 18, 1997, Dr. Shall performed surgery to Ricks's

left shoulder which he described as arthroscopy and subacromial

decompression.    Heitpas agreed that the injury was compensable

and awarded Ricks temporary total disability benefits from

November 26, 1996 through March 26, 1997.      Ricks returned to

full-duty work April 17, 1997.    Ricks did not miss any work even

though he still experienced some pain in his shoulder.

        Dr. Shall testified that Ricks suffered a torn ligament and

a dent on the back of the humerus bone as a result of the first

fall.    Until April 17, 1997, Ricks's visits were "routine

post-op" but he was still complaining of pain, which was

unusual.    At this visit, Ricks was given a cortisone injection

for residual bursitis.    During a May 12, 1997 office visit,

Ricks complained of pain in a new area, which Dr. Shall termed a

"new finding," and was given another cortisone injection.      On

June 30, 1997 Dr. Shall diagnosed Ricks with distal clavicle

osteolysis and believed he "might need surgery at some point in



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the future. . . ."   The doctor could not determine the cause of

the need for the additional surgery.

     On July 17, 1997, while employed by Stowe, Ricks fell and

sustained an injury.   He was doing some metal stud framing on

scaffolding when the sheetrock beneath him broke; he fell ten

feet onto his left side.   Ricks testified this pain was

different from, and lower than, the pain he experienced from the

first fall.    Dr. Shall testified that Ricks complained of pain

directly over his AC joint.   Dr. Shall felt that Ricks had a

strain or sprain on top of his existing injury.   An MRI

performed August 13, 1997 showed no significant anatomical

change in Ricks's condition after the second fall.

     Although he had returned to work and still experienced pain

from the first fall, Ricks’s symptoms increased significantly

after the second fall.   As a result, he underwent a second

surgery September 23, 1997 whereby Dr. Shall took out the end of

the clavicle.   Dr. Shall testified that the first fall left

Ricks susceptible to the AC joint synovitis and clavicle

osteolysis.    Dr. Shall could not determine to a degree of

medical certainty whether Ricks's condition was caused by the

second fall.

     Stowe's first contention is that Ricks did not establish by

a preponderance of the evidence that the second fall created a

new injury to the shoulder.    See Code § 65.2-101.   Stowe claims

that Ricks's AC joint, which was corrected by surgery, did not

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change after the second fall.     Thus, Stowe argues the commission

erred in finding that the second fall resulted in a new shoulder

injury.   We disagree.

     On appeal, we construe the evidence in the light most

favorable to Ricks.      See R.G. Moore Bldg. Corp. v. Mullins, 10

Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).     The

determination of causation is a factual finding that will be

upheld on appeal if supported by credible evidence.       See C.D.S.

Constr. Servs. v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236,

240 (1978); James v. Capitol Steel Constr. Co., 8 Va. App. 512,

515, 382 S.E.2d 487, 488 (1989).     "In determining whether

credible evidence exists, [this Court will] not retry the facts,

reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses."       Wagner

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991) (citation omitted).     "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."      Id.

     The only medical testimony presented was that of the

treating physician, Dr. Shall.     Dr. Shall noted Ricks's new

symptoms as a result of the second fall:     a sprain or strain on

top of his previous injury; a bruise on the front of his arm;

and Ricks's inability to move his arm.     Ricks testified that the

pain was in a new location, lower in the shoulder than the pain

from the first fall.     Claimant's testimony regarding the injury

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is a factor to consider in weighing the evidence.    See Dollar

General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152,

154 (1996) (claimant's testimony may be considered to determine

causation, "especially where the medical testimony is

inconclusive").   The exacerbation of a pre-existing injury

constitutes a new compensable accident where it arises out of

and in the course of employment.    See Ohio Valley Constr. Co. v.

Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985) (a new

injury which exacerbates a previous condition resulting in

accelerated disability is compensable).

     The commission found that Ricks had sufficiently recovered

from the first injury, evidenced by the fact that he had

returned to full-duty work as a construction laborer on April

17, 1997.    While Dr. Shall believed that Ricks might need

surgery in the future, it was not scheduled until after the

second fall occurred.   We find sufficient credible evidence to

support the commission's finding that the second injury was a

new compensable injury that aggravated the pre-existing

condition.

     Stowe next contends that the evidence is not sufficient to

support the finding that it is responsible for Ricks's medical

treatment by Dr. Shall, namely the September 1997 surgery.      We

disagree.    After the second fall, Ricks was unable to work.   Dr.

Shall noted that the second injury necessitated the timing of

the second surgery by exacerbating and changing Ricks's

                                - 5 -
symptoms.   Where an employee's accident causes increased injury

and disability, even though to the same anatomic area of a

previous condition which continued to be symptomatic, the second

accident establishes an independent injury under the Workers’

Compensation Act where it arises out of and in the course of the

employment.     See Pelerin v. Hematology and Oncology Assocs.,

Ltd., 67 O.I.C. 212 (1988).    The second injury can be

independently compensable even though it aggravates a

pre-existing condition.    We find sufficient credible evidence to

support the commission's finding that Stowe is responsible for

the medical treatment Ricks received after the second fall.

     Stowe next contends that it was prejudiced by the striking

of its defenses, the limitation of its right to cross-examine

Ricks and the commission's refusal to let it call witnesses.      We

disagree.

     Stowe failed to proffer any of the testimony excluded from

the hearings.    Where a party alleges error based on the

exclusion of evidence, it must make a proffer of proof for the

court to determine if he has been prejudiced.     See City of

Richmond Police Dep't v. Bass, 26 Va. App. 121, 130, 493 S.E.2d

661, 665 (1997) ("Proffer facilitates appellate review of an

exclusion of testimony.").    Absent a proper proffer, we are

precluded from considering this issue.

     Stowe argues that it was limited in its defense by the

commission's refusal to allow it to cross-examine Ricks.

                                 - 6 -
Stowe's defense was medical causation, and the commission

limited Stowe’s questioning to that defense alone.   While Stowe

could have raised the defense of Ricks's misrepresentation, it

did not do so.

     Finally, Stowe complains that there was a mutual mistake of

fact with respect to Ricks's average weekly wage.    The

commission's award was based on the parties' stipulation to an

average weekly wage of $540.   Parties are bound by their

stipulations.    See Barrick v. Board of Supervisors of Mathews

County, 239 Va. 628, 631, 391 S.E.2d 318, 320 (1990).      Stowe

failed to meet its burden to produce evidence to justify

vacating the stipulation.

     For the foregoing reasons, we affirm the commission's

decision.

                                                            Affirmed.




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