Moose v. Smithfield Foods Inc., 062921 VAWC, VA00000846194

• Case Date: June 29, 2021
• Court: Virginia

DAVID MOOSE v. SMITHFIELD FOODS INC., SAFETY NATIONAL CASUALTY CORP, Insurance Carrier ESIS, INC, Claim Administrator Jurisdiction Claim No. VA00000846194 Claim Administrator File No. 77144942312552 Virginia In The Workers' Compensation Commission June 29, 2021           Date of Injury August 26, 2013           Jan F. Hoen, Esquire For the Claimant.           Amanda Tapscott Belliveau, Esquire For the Defendants.           REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.           OPINION           MARSHALL Commissioner          The defendants request review of the Deputy Commissioner's February 16, 2021 Opinion which found medical treatment to the right shoulder, including a September 5, 2019 surgery, was reasonable, necessary and causally related to the 2013 work injury and a compensable consequence of that injury. We AFFIRM.          I. Material Proceedings          The claimant sustained a right shoulder injury in a work accident on August 26, 2013. The defendants accepted the injury as compensable. A July 25, 2014 Award Order granted the claimant temporary total disability from February 17, 2014 through July 14, 2014 and a lifetime medical award for "status post right shoulder arthroscopy."^[1]          The claimant filed a December 30,2019 claim. He alleged a February 2014 surgery resulted in a failed SLAP repair. He sought payment for medical treatment to the right shoulder and biceps tendon, including a surgery performed on September 5, 2019.          The defendants denied that treatment from either December 2018, or in the alternate, February 2019, was reasonable, necessary and causally related to the 2013 accident. They asserted the claimant's current condition was not a compensable consequence of the 2013 accident and was the result of an intervening event or condition.          The Deputy Commissioner concluded the claimant met his burden of proving his September 5, 2019 surgery was a result of the August 26, 2013 work accident. (Op. 2.) He explained:

Moose's credible testimony and Dr. Bevilacqua's persuasive opinions establish that he required the surgery Dr. Bevilacqua performed on September 5, 2019 as a direct result of his August 26, 2013 industrial accident because the original surgery performed on February 10, 2014 had failed, causing the need to repair the continuing damage to Moose's right shoulder. Furthermore, this evidence demonstrates that Moose suffered additional damage to his upper right arm as a compensable consequence of the failed right shoulder surgery. Given Moose's credible testimony that he never fully recovered the strength in his right arm after the first surgery Dr. Bevilacqua performed and Dr. Bevilacqua's persuasive opinions, it is also found that the incident he described on December 28, 2018 did not sever the causal connection between his industrial accident and the treatment Dr. Bevilacqua then provided. Green v. Warwick Plumbing & Heating Corp., 5 Va.App. 409, 411 (1988). Furthermore, given that there is no persuasive evidence that the medical care Dr. Bevilacqua rendered, including the surgery he performed on September 5, 2019, exceeded the bounds of normal medical care for the conditions that Moose presented, it is found that this care was reasonable and necessary for Moose's August 26, 2013 industrial accident.

(Op. 6-7.) The Deputy Commissioner awarded continuing medical benefits for the injuries sustained August 26, 2013, including the September 5, 2019 surgery, and related care by Dr. Bevilacqua, including treatment to the right biceps, supraspinatus and subscapularis.          The defendants request review. They argue the Deputy Commissioner erred in finding treatment subsequent to December 28, 2018, including the September 5, 2019 surgery was reasonable, necessary and related to the 2013 work accident. They assert the opinions of Dr. Bevilacqua, the treating physician, are contradictory, shaded by doubt, and based on an incorrect history. They assign error to the finding that the claimant's biceps, subscapularis, and supraspinatus conditions are compensable consequences of the 2013 accident.          II. Findings of Fact and Rulings of Law          We reviewed the testimony, medical...