                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and McClanahan
Argued by teleconference


CHARLES LEE McDANIEL, JR.
                                                            MEMORANDUM OPINION* BY
v.     Record No. 1938-06-2                               JUDGE JEAN HARRISON CLEMENTS
                                                                  AUGUST 21, 2007
PHILIP MORRIS USA, INC. AND
 INDEMNITY INSURANCE COMPANY
 OF NORTH AMERICA


               FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Jamie L. Karek (Geoffrey R. McDonald & Associates, on brief), for
                 appellant.

                 Michael N. Salveson (Hunton & Williams, on brief), for appellees.


       Charles Lee McDaniel, Jr., (claimant) appeals a decision of the Workers’ Compensation

Commission (commission) terminating his temporary total disability benefits upon the

application of Philip Morris USA, Inc., and Indemnity Insurance Company of North America

(collectively, employer). Claimant contends the commission erred in finding his ongoing

disability was not causally related to his compensable injury. Finding no error, we affirm the

commission’s decision.

       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.




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

       In 1982, claimant tore his left knee meniscus and underwent corrective surgery after

which he missed four to five months of work with a different employer. Later in 1994, claimant

twisted his left knee working for employer. For that injury, claimant took anti-inflammatories

and missed no work. At some point, claimant was diagnosed with arthritis in his left knee.

Claimant underwent two subsequent arthroscopies on his left knee some time in the late 1990s

and in 2001, missing five to six weeks of work with employer each time. Over a twenty-year

period, claimant received about ten cortisone shots for his left knee pain. Claimant knew he

required a total knee replacement prior to his compensable injury.

       During the year before his compensable injury, claimant worked full duty. He had some

knee pain and took prescription medication occasionally. In May, June, and July 2004, claimant

took no pain medication for his knee. Except for a cortisone injection he received in May 2004,

claimant’s left knee was feeling “really good” prior to the compensable injury. From July 2002

through the date of his compensable injury in 2004, claimant wore a knee brace.

       On July 16, 2004, claimant suffered the compensable injury to his left knee while

working as a plumber/pipe fitter for employer. Claimant never returned to employment.

Pursuant to an award of the commission, employer paid claimant temporary total disability

benefits for the period July 17, 2004, through May 5, 2005.

       Immediately following claimant’s injury by accident, he suffered pain and swelling of his

left knee. He relied on crutches after the injury and experienced a “giving way sensation” in his

knee. Dr. Higgs evaluated claimant on July 27, 2004, and August 10, 2004. He conducted an

arthroscopic debridement surgery on September 8, 2004, to resolve claimant’s July 16 injury.

       After the September 8 surgery, Dr. Higgs documented several evaluations of claimant and

also noted claimant’s reports of post-surgery recovery. In one account dated September 21, 2004,

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Dr. Higgs stated: “The patient reports no significant pain. The pain that he had prior to surgery the

sharp stabbing pain has been resolved.” Later, on October 26, 2004, Dr. Higgs wrote: “He reports

improving pain, no mechanical [symptoms] as present prior to the surgery.” Dr. Higgs’s letter to

the insurer, dated November 15, 2004, stated:

               Mr. McDaniel’s osteoarthritis is not a direct result of the injury
               sustained at work. The patient had an acute injury that has been
               arthroscopically addressed. I anticipate that he will approach
               pre-injury status and then get his [maximum medical
               improvement] for this treatment in a short period of time and then
               resume his treatment with Dr. [Kiritsis] for his ongoing
               osteoarthritis.

       Following a December 2, 2004 evaluation of claimant, Dr. Higgs noted that claimant’s left

knee was “still painful” and that claimant was “making slow steady progress.” He diagnosed:

“Slow recovery from his work injury in the setting of pre-existing osteoarthritis.” Dr. Higgs

recommended proceeding with knee replacement surgery if claimant did not improve within four

weeks. He further noted, however, that “the knee joint replacement surgery [would] not be related

to the injury he sustained at work.”

       Claimant’s physical therapist, Jess Brown, documented that claimant expressed

improvement in status on September 30, 2004; that on October 4, 2004, he had slightly less pain

than at his previous session; that on October 19, 2004, he stated “his knee overall is a little better

as he is having less difficulty and pain with walking” but continued to have significant pain and

difficulty with “sit to stand transitions” and with the knee giving way; and that on December 6

and 8, 2004, he had “no new complaints.”

       On January 6, 2005, Dr. Higgs stated that claimant was “continuing to have pain which

[was] sharp and stabbing and aching in quality.” Dr. Higgs also opined claimant had reached his

maximum medical improvement for his work injury. Additionally, Dr. Higgs reported:

               Using the AMA Guide to Permanent Impairment he has a 4%
               impairment of the left knee. The patient is not cleared to return to
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                work. It is recommended that he have a total knee replacement
                however the knee replacement will be for the treatment of injury
                pathology associated with previous work injury and pre-existing
                osteoarthritic process.

        In a letter to insurer dated February 7, 2005, Dr. Higgs again noted his recommendation

for total knee replacement surgery “as was planned at some point in the future prior to his work

injury” and stated claimant “had significant pre-existing osteoarthritis prior to the injury

sustained at work.”

        On February 17, 2005, Dr. Higgs responded to a questionnaire provided by claimant’s

counsel. Therein, he replied in the negative as to “whether the condition for which you referred

Mr. McDaniel to Dr. Jessup [for knee replacement surgery] is related to his industrial injury.” In

the same questionnaire, Dr. Higgs answered in the affirmative when asked whether claimant’s

July 16, 2004 injury “aggravated a pre-existing condition, pushing up the need for surgery which

he probably would have needed in the future.” In another questionnaire from claimant’s counsel

dated July 21, 2005, Dr. Higgs selected “no” when asked whether claimant’s ongoing disability was

“directly related to his injury at work . . . , which aggravated a pre-existing condition in his left

knee.” Dr. Higgs further explained his answer, writing that claimant’s July 16, 2004 work-related

injury was “adequately treated” by the September 8, 2004 surgery. Dr. Higgs added that claimant

had a total knee replacement planned before the July 16 accident.

        On May 3, 2005, employer filed an application to terminate claimant’s temporary total

disability benefits on the ground that his ongoing disability was not causally related to his

compensable injury by accident. The deputy commissioner held a hearing on employer’s

application on September 26, 2005.

        At that hearing, claimant testified that, despite the September 8, 2004 surgery, he continued

to have significant and debilitating left knee pain. However, on cross-examination, claimant could

not explain his own statements to Dr. Higgs reporting he had no significant pain and that the sharp
                                               -4-
stabbing pain had been resolved after his September 8, 2004 surgery. Claimant acknowledged he

tried to answer Dr. Higgs’s questions as best he could.

       Following the hearing, the deputy commissioner found employer’s evidence insufficient

to prove claimant’s ongoing disability was unrelated to the compensable injury and denied

employer’s application to terminate claimant’s temporary total disability benefits. Upon review,

the commission reversed the deputy commissioner’s judgment and terminated temporary total

disability benefits. In reaching that decision, the commission noted the question of disability was

essentially a medical one and relied on Dr. Higgs’s consistent statements that claimant’s ongoing

disability was not causally related to the compensable injury.

       This appeal by claimant followed.

                                           II. ANALYSIS

       On appeal, claimant contends that, because Dr. Higgs opined that claimant’s

compensable injury aggravated his pre-existing knee problems, “it is clear that [claimant’s]

ongoing disability is related to his work accident.” Thus, he concludes, the commission erred in

finding his ongoing disability was not causally related to his compensable injury. We disagree.

       Under settled principles of appellate review,

               [t]he commission’s determination of causation is a finding of fact.
               American Filtrona Co. v. Hanford, 16 Va. App. 159, 165, 428
               S.E.2d 511, 515 (1993). The factual findings of the commission
               are conclusive and binding on appeal if supported by credible
               evidence in the record. Southern Iron Works, Inc. v. Wallace, 16
               Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). “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.” Wagner
               Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
               (1991). “This rule applies when an expert’s opinion contains
               internal conflict.” Greif Companies/Genesco, Inc. v. Hensley, 22
               Va. App. 546, 552, 471 S.E.2d 803, 806 (1996). “Likewise, the
               [c]ommission’s conclusions upon conflicting inferences,
               legitimately drawn from proven facts, are equally binding on
               appeal.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101, 300
               S.E.2d 761, 763 (1983). “In determining whether credible
                                            -5-
               evidence exists, the appellate court does not retry the facts,
               reweigh the preponderance of the evidence, or make its own
               determination of the credibility of the witnesses.” Wagner Enters.,
               Inc., 12 Va. App. at 894, 407 S.E.2d at 35.

Henrico County Sch. Bd. v. Etter, 36 Va. App. 437, 443-44, 552 S.E.2d 372, 375 (2001).

       Applying these principles to the circumstances presented in this case, we find the medical

record and Dr. Higgs’s opinions support the commission’s factual determination that claimant’s

ongoing disability was not causally related to his compensable injury.

       The medical record and claimant’s testimony reflect that claimant suffered a long history

of left knee problems including a meniscus tear and subsequent surgery in 1982, a left knee twist

in 1994, an osteoarthritis diagnosis, two arthroscopies in the late 1990s and 2001, and several

cortisone shots and other medications to alleviate his left knee pain. Following claimant’s

compensable injury by accident in July 2004 and remedial surgery in September 2004, the

medical record documents claimant’s recovery and return to pre-injury status. Dr. Higgs’s

post-surgery reports reveal that claimant’s pre-surgery pain and mechanical symptoms in his left

knee were resolved by the surgery. Claimant’s physical therapist documented claimant’s

statements of improving status and decreased pain in his left knee. Later, Dr. Higgs stated

claimant’s osteoarthritis was not “a direct result of the injury sustained at work” and, having

“arthroscopically addressed” the compensable injury, he anticipated claimant would return to

“pre-injury status and resume treatment with Dr. [Kiritsis] for his ongoing osteoarthritis.” In

other post-surgery records, Dr. Higgs opined that claimant’s work injury occurred in the setting

of “pre-existing osteoarthritis” and that claimant had reached his maximum medical

improvement for his work injury. He further opined that claimant’s ongoing disability was not

“directly related to his injury at work . . . , which aggravated a pre-existing condition in his left

knee,” and that the September 8, 2004 surgery “adequately treated” the compensable injury.

Moreover, as he had discussed on several occasions with claimant, Dr. Higgs recommended a
                                             -6-
total knee replacement for the “injury pathology associated with previous work injury and

pre-existing osteoarthritic process.”

       As the commission noted, Dr. Higgs offered the only medical opinion on the issue of

causation. From Dr. Higgs’s medical records and opinions, the commission could reasonably

determine, as a matter of fact, that the compensable injury and any aggravation of claimant’s

pre-existing knee problems caused thereby were resolved by the September 8, 2004 surgery and

that claimant’s ongoing disability was not causally related to the compensable injury. We have

noted that “[m]atters of weight and preponderance of the evidence, and the resolution of

conflicting inferences fairly deducible from the evidence, are within the prerogative of the

commission and are conclusive and binding on the Court of Appeals.” Kim v. Sportswear, 10

Va. App. 460, 465, 393 S.E.2d 418, 421 (1990) (citation omitted). Although some of

Dr. Higgs’s responses and statements regarding the causal connection between claimant’s

ongoing disability and his compensable injury may arguably conflict with each other, the

commission, as fact finder, was entitled to determine the weight, meaning, and credibility to give

his respective responses and statements and to reconcile any possible conflicts therein.

       Because the commission’s finding that claimant’s ongoing disability was not causally

related to his compensable injury is supported by credible evidence, we will not disturb that

finding on appeal.

                                        III. CONCLUSION

       For these reasons, we affirm the judgment of the commission.

                                                                                           Affirmed.




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