Davis v. Wal-Mart Assoc., Inc.

80 Va. App. 526

899 S.E.2d 76

Jeremie DAVIS

v.WAL-MART ASSOCIATES, INC., et al.

Record No. 0503-23-3

Court of Appeals of Virginia, Lexington.

April 2, 2024

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Darren Shoen, Bedford (Law Office of Darren Shoen, PLLC, on brief), for appellant.

Monica T. Monday (Peter G. Irot; Gentry Locke, on brief), for appellees.

Present: Judges Beales, O’Brien and Raphael

OPINION BY JUDGE RANDOLPH A. BEALES

Jeremie Davis appeals the judgment of the Workers’ Compensation Commission that he did not sustain an injury by accident on May 5, 2022. Davis argues, "The Commission erred in finding that the claimant [Davis] did not sustain an injury by accident in that he did not prove a structural or mechanical change in his body." He also asserts that the Commission erred by finding that his "injury was a ‘predictable consequence of [his] voluntary defiance’ of medical restrictions."

I. BACKGROUND

[1] In an appeal from a decision of the Workers’ Compensation Commission, Code § 65.2-706 establishes that the Commission’s award "shall be conclusive and binding as to all questions of fact." City of Charlottesville v. Sclafani, 300 Va. 212, 223, 862 S.E.2d 101 (2021) (quoting Code § 65.2-706). Furthermore, this Court and the Supreme Court "construe the evidence in the light most favorable to the prevailing part[y] before the Commission." Id. (alteration in original) (quoting Jeffreys v. Uninsured Emp’rs Fund, 297 Va. 82, 87, 823 S.E.2d 476 (2019)).

With those principles in mind, the evidence in the record here showed that Davis began work for Wal-Mart stocking shelves in July 2021. At that time, Davis already had a long history of back problems and had previously undergone three back surgeries. Davis had an "L5-S1 discectomy" procedure performed on his back in 2015. Two years later, in 2017, he began treating with Joseph Orchowski, M.D. for a "worsening onset of symptoms." Dr. Orchowski assessed that Davis had "a recurrent herniated disk," necessitating a "revision microdiscectomy" in 2017 in the same location in Davis’s back, L5-S1. Davis continued to follow up with Dr. Orchowski following that surgery and continued to report that he had severe back pain. On May 8, 2018, Davis underwent a lumbar fusion surgery by Dr. Orchowski. Davis returned to Dr. Orchowski in August 2019 with "continued low back pain and left lower extremity pain." Dr. Orchowski recommended a spinal injection and physical therapy for four weeks, followed by a Functional Capacity Evaluation ("FCE"). Dr. Orchowski provided Davis with a detailed work note taking him out of work until his next follow-up appointment in six weeks.

In November 2019, Davis returned to Dr. Orchowski with "worsening low back pain which radiate[d] into his left posterior buttocks." Dr. Orchowski noted that Davis’s physical condition had "progressively worsened" since his FCE and that Davis "ha[d] since been taken out of work again." Davis reported that he had a "recent flare up of pain in his low back after … sitting down to eat dinner." The record of that visit further provides that Dr. Orchowski recommended another spinal injection, that a "detailed work note was provided restricting him [Davis] to no work until his next follow up appointment," and that Dr. Orchowski would follow up with Davis in eight weeks.

Davis did not follow up with Dr. Orchowski after the November 2019 appointment. Davis had a follow-up visit scheduled for March 2020, but he cancelled the appointment. Davis testified that he did not return to Dr. Orchowski after the November 2019 appointment because he felt better after losing weight and felt that he could return to work. After Davis began working at Wal-Mart in 2021, he informed several of his supervisors of his prior back issues.

On May 5, 2022, Davis was working in Wal-Mart stocking shelves. Davis knelt down to place a 12-pack of ginger ale on a bottom shelf and felt a sharp pain in his lower back. After Davis summoned his supervisor for help, an ambulance transported him to Lynchburg General Hospital. Medical records from the hospital state that Davis’s back was x-rayed and that the attending physician noted that he observed no evidence of acute fracture, subluxation, or disease involving the lumbar spine. The attending physician recommended that Davis follow up with his orthopedist. Davis was discharged in stable condition with pain medication.

On May 9, 2022, Davis saw Jacqueline Perdue, a certified physician’s assistant. Davis reported to Perdue that he felt a sharp pain in the middle of his back while at work. In her record of the visit, Perdue stated that her assessment of Davis was: "Acute low back pain, unspecified back pain laterality, unspecified whether sciatica present." She also stated that, after reviewing the May 5, 2022 x-ray of Davis’s back, Davis’s L5-S1 spinal fixation surgery "[h]ardware appeared intact." She further noted, "No evidence for acute fracture or subluxation."

On May 12, 2022, Davis sought treatment from MedExpress. He told the treating physician, Dr. Ghada Alsayed, that he injured his back at work; however, the medical records of that visit do not reflect that Davis reported his prior spinal fusion or discectomies. Instead, the only surgical history reported by Davis was an appendectomy he had in the 1990s and an unspecified "[b]ack [s]urgery" on a date Davis could not recall. Without conducting any diagnostic imaging, the MedExpress physician prescribed Davis pain medication for a lumbar sprain.

Davis sought treatment from Dr. Orchowski on June 10, 2022. The medical records of that visit state that Dr. Orchowski reviewed the x-rays of Davis’s back and ordered a lumbar MRI "to evaluate for a significant disk protrusion or nerve root impingement." The x-ray revealed "[a]ppropriate placement of instrumentation" at L5-S1. Dr. Orchowski’s records from Davis’s August 4, 2022 appointment with him state, "the MRI shows L5-S1 TLIF [fusion surgery] with appropriate placement of instrumentation, no evidence [of] compression, small amount of disc degeneration at L4-5, and a small amount of left side lateral recess stenosis at L4-5 which looks similar to prior imaging."

On July 29, 2022, Dr. Orchowski completed a questionnaire provided by counsel for Wal-Mart regarding Davis’s condition. In his answers to the questionnaire, Dr. Orchowski agreed that on November 1, 2019, he informed Davis that he was in an "entirely out of work status" and that he did not release Davis back to any form of work after that date. Dr. Orchowski also agreed that he had reviewed Davis’s July 2022 MRI. In addition, the questionnaire asked, "Within a reasonable degree of medical probability, can you say that Mr. Davis sustained an actual mechanical or structural change to his body as a result of an incident at work occurring on May 5, 2022?" In response, Dr. Orchowski answered, "No."

Davis filed a claim for benefits on May 11, 2022. Following a hearing on September 22, 2022, the deputy commissioner denied Davis’s claim on October 26, 2022, finding that Davis had failed to prove that an accident caused a structural or mechanical change to his back. As a second ground to deny the claim, the deputy commissioner found that, because Davis had returned to work without obtaining a release, his injury had not resulted from an accident. Instead, the deputy commissioner found that it was a "known and expected result" of returning to the workplace.

Davis appealed to the full Commission. Citing Dr. Orchowski’s opinion, the Commission ruled that Davis failed to prove that he had sustained a sudden mechanical or structural change to his body as a result of the May 5, 2022 incident at Wal-Mart. Therefore, the Commission found that Davis did not meet his burden of establishing an injury by accident. Given that Davis did not sustain a compensable injury, the Commission concluded that the issue of whether the alleged injury "was an expected result of exceeding work restrictions" was moot and did not address that alternative ground on the merits. Davis now appeals to this Court.

II. ANALYSIS

[2–5] Under the Workers’ Compensation Act, to recover benefits a claimant must prove, "by a preponderance of the evidence, (1) an ‘injury by accident or occupational disease, (2) arising out of, and (3) in the course of, the employment.’ " City of Charlottesville v. Sclafani, 300 Va. 212, 221, 862 S.E.2d 101 (2021) (quoting Morris v. Morris, 238 Va. 578, 584, 385 S.E.2d 858 (1989)). This Court has stated that whether a claimant suffered an injury by accident presents a mixed question of law and fact. Riverside Reg’l Jail Auth. v. Dugger, 68 Va. App. 32, 37, 802 S.E.2d 184 (2017). When analyzing the totality of a claimant’s or employer’s appeal, whether the Commission had "correctly defined and applied a legal standard is a question of law reviewed de novo." Alexandria City Pub. Sch. v. Handel, 299 Va. 191, 196, 848 S.E.2d 816 (2020). The Supreme Court has stated that an injury, as defined by the Workers’ Compensation Act, requires a claimant to prove he suffered "a sudden obvious mechanical or structural change in the body." Snead v. Harbaugh, 241 Va. 524, 527-28, 404 S.E.2d 53 (1991) (internal quotation omitted). "The ‘structural or mechanical change’ is the injury, when it ‘produces harm or pain or a lessened facility of the natural use of any bodily activity or capability.’ " Handel, 299 Va. at 107, 848 S.E.2d 816 (quoting Snead, 241 Va. at 528, 404 S.E.2d 53). For example, when a claimant alleges injury to multiple body parts, he must prove mechanical or structural change in every body part injured for each to constitute a compensable injury. Id. (" [W]ithout such a change in a body part, there is no injury to it."). Therefore, to establish that he suffered an injury by accident while working for Wal-Mart, part of Davis’s burden here was to prove that he suffered a "structural or mechanical change" to his body. Id.

[6–9] On the specific question of...