COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Annunziata Argued at Alexandria, Virginia

INTERSTATE TRUCK SERVICE, INC. AND AMERICAN HOM E ASSURANCE CO. v. Record No. 3134-05-4
JOSEPH A. RICKETTS MEMORANDUM OPINION * BY JUDGE JEAN HARRISON CLEMENTS JOSEPH A. RICKETTS AUGUST 1, 2006 v. Record No. 3170-05-4 HIGHWAY MOTORS, INC. AND VADA GROUP SELF-INS URANCE ASSOCIATION

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION John H. Carstens (Meredith J. Sm ith; Jordan Coyne & Savits, L.L.P., on briefs), for Interstate Truck Se rvice, Inc. and American Home Assurance Co. Nikolas E. Parthemos (Parthemos & Bryant, P.C., on briefs), for Joseph A. Ricketts. Arthur T. Aylward (Iris W. Redmond; Midkiff, Muncie & Ross, P.C., on brief), for Highway Motors, Inc. and VADA Group Self-Insurance Association.

These separate appeals arise from a si ngle judgment by the Workers’ Compensation Commission (commission) denying Joseph A. Ricket ts (claimant) certain compensation on his claim against Highway Motors, Inc., and its carrier, VADA Group Self-Ins urance Association (collectively, Highway Motors), and awarding him certain compen sation on his alternative claim against Interstate Truck Service, Inc., a nd its carrier, American Home Assurance Co.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - (collectively, Interstate). Interstate app eals the award contending the commission erred in (1) reviewing the decision of the deputy comm issioner denying compensa tion on the alternative claim and (2) concluding claimant sustained a ne w injury by accident arising out of and in the course of his employment with In terstate. Additionally, in the a lternative, claimant appeals the commission’s denial of compensation on his claim against Highway Motors, asserting that, if the award against Interstate is reversed, then Highway Motors should provide compensation. Because these appeals involve common fact s, proceedings, and issues of law, we consolidate them for purposes of this decision. See Bennett v. Commonwealth , 8 Va. App. 228, 229 n.1, 380 S.E.2d 17, 18 n.1 (1989). Finding no erro r, we affirm the judgment of the commission. 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’ understandin g of the disposition of these appeals.
I. BACKGROUND On January 14, 2004, claimant injured his left knee while employed as a trailer technician for Highway Motors. Claimant sustained the inju ry on the job when he jumped down five feet from the rear of a trailer be d onto a concrete floor, landing on some loose boards. When claimant landed, the boards kicked out from under his feet causing his left knee to buckle and twist. Claimant immediately experienced a sharp pain in his left knee. On January 28, 2004, claimant, who was unable to return to work after the injury, underwent an MRI of his left knee. The MRI indicated that he ha d sustained “exte nsive bilateral meniscus tears” in his knee. The MRI further indi cated that claimant’s ante rior cruciate ligament (ACL) was “absent” and displayed “an appearance consistent with an old complete tear.”- 3 - Preexisting the incident of January 14, 2004, claima nt’s ACL condition caused him to have an “at risk” left knee, which potential ly predisposed him to knee injury. On February 3, 2004, claimant came under the care of Dr. Thomas Daugherty, an orthopedic surgeon. After examining claimant, Dr. Daugherty performed surgeries on the tears in his left knee on February 6, 2004, and April 15, 2004. Dr. Daugherty monitored claimant’s condition and released him to light-duty work on May 14, 2004. Having noted that claimant was “overall . . . doing moderately well,” Dr. Daughe rty released him to full-duty work with no restrictions on August 31, 2004. Following his release to full-duty work, cl aimant quit his employment with Highway Motors and became employed as a trailer technician for Interstate. Claimant was employed by Interstate from September 2004 until November 2004, performing the “same” or “very similar” kind of work that he had performed with Highw ay Motors. Although he experienced some pain and instability in his knee during this time and wo re a knee brace, claimant was able to work full time with occasional overtime and perform full-duty work. He di d not visit with Dr. Daugherty at any time during his empl oyment with Interstate. 1 On November 29, 2004, claimant was empl oyed by Interstate and was performing a work-related task inside a trailer car. Needing to retrieve additional materials to complete the task, he began to exit the rear of the trailer. Claimant had a ltered his manner of exiting trailer cars because of the continuing pa in and instability in his knee. As he had done on many prior occasions with Interstate, he sat down at the rear of the trailer car and then hopped two to three feet down to a concrete floor. When claimant landed on the floor, which was free from debris,

1 The only contact between claimant and Dr. Daugherty during this period was when claimant telephoned Dr. Daugherty on September 7, 2004, to complain about the increased pain he was experiencing following the administra tion on August 31, 2004, of a steroid injection in his left knee. Claimant visited no other phys ician during his employme nt with Interstate.- 4 - his left knee buckled. Claimant immediately experienced “excruciating” pain and swelling in his left knee and fell to the floor. He was ther eafter immobilized, unable to return to his employment with Interstate, and restricted to sedentary labor. On December 2, 2004, claimant visited Dr. Da ugherty for treatment of his left knee. Dr. Daugherty examined claimant and noted that he had sustained an “aggravation of [his] pre-existing injury” during the N ovember 29, 2004 incident. He furt her noted that claimant “had been doing moderately well” until the incident and was now “having significant additional problems.” Dr. Daugherty opined that “[ t]he question arises as to the origin of th is. It is clear he never fully recovered from his injury of 1/14/04.” On December 16, 2004, claimant underwent an additional MRI of his left knee at the request of Dr. Daugherty. The MRI indicated that claimant had sustained “a significant increase in the joint effusion” and “extensive bone bruisi ng.” The “extensive bone bruising” constituted a “new finding.” Dr. Daugherty reviewed the MRI a nd noted “multiple significant changes” to the left knee. In a later deposition, Dr. Daugherty at tributed the “significan t increase in the joint effusion” and the “extensive bone bruisi ng” to the November 29, 2004 incident. On December 30, 2004, claimant filed two sepa rate claims with the commission seeking, in part, compensation for the disability period commencing after the November 29, 2004 incident. 2 He filed a claim against Highway Mo tors asserting that the November 29, 2004 incident was a natural consequence flowing from the primary injury he had sustained on January 14, 2004. Claimant also filed an alternative claim against Inters tate asserting that he had sustained a new injury by accident on November 29, 2004, arising out of and in the course of his employment with Interstate. Claimant request ed consolidation of th ese claims for hearing.

2 Highway Motors accepted respons ibility for claimant’s primar y injury that he sustained on January 14, 2004. Highway Motors compensated claimant for the injury until August 2004 when claimant returned to full-duty work.- 5 - On February 17, 2005, Dr. Daugherty wrote a le tter to claimant’s counsel addressing claimant’s continuing left knee condition. In that letter, Dr. Daugherty opined: It is my opinion to a reasona ble degree of certainty that 100% of the current problems and issues associated with [claimant’s] left knee are attribut able to his injury of January 14, 2004, and the sequelae from that. The episode in which he sustained a spontaneous fall on November 29, 2004, was directly related to the instability present in [claimant’s] knee after his injury of January 14 and subsequent surgeries. The surgical/traumatic absence of his medial and lateral meniscus predisposes him to instability of the knee which is aggravated and accentuated by the absence of his anterior crucia te ligament, nonfunctional entity. On February 22, 2005, Dr. Daugherty reexamined claimant’s left knee and reiterated his previous medical opinion. Although claimant “emphasize[d] the amount of swelling that occurred in his knee after the fall on 11/29/04,” Dr. Daugherty opined that “the event of 11/29/04 was 100% related to issues in the knee which emanat ed from the 1/14/04 injury. In other words, the 11/29/04 injury was not a new event but strict ly a complicating factor of his 1/14/04 injury and subsequent treatment.” Dr. Robert A. Smith, an orthopedic surge on, performed a records review for Highway Motors and prepared a report on his findings on May 11, 2005. In that report, Dr. Smith, who had not personally treated claimant , opined that claimant had sustai ned a “new injury to his left knee in the work incident of N ovember 29, 2004.” He explained th at claimant had been “treated adequately by Dr. Daugherty, rehabilitated and released for full duty work prior to [the] November 2004 incident.” He further explained that claimant’s “chronic ACL deficiency would lead to an unstable knee and the mechanism of injury in the November 29 event could clearly lead to this new injury.” On June 17, 2005, the deputy commissioner c onsolidated the claims against Highway Motors and Interstate for hearing. Following th e hearing, in which clai mant, Highway Motors, and Interstate participated w ithout objection, the deputy commi ssioner issued a single opinion,- 6 - wherein he awarded claimant compensation on his claim against Highway Motors for the post-November 29, 2004 disability period and deni ed claimant’s alternative claim for such compensation against Interstate. The deputy comm issioner concluded that “the disability and treatment after November 29, 2004, [was] related to the January 14, 2004, incident and not a new incident on November 29, 2004. Thus, the responsibi lity for such treatment remain[ed] with the initial employer[, Highway Motors].” The deputy commissioner also conc luded that claimant was not entitled to temporary total disability benefits from February 22, 2005, through March 15, 2005, because he had failed to market his re sidual work capacity during that period. On July 5, 2005, Highway Motors filed a ti mely request for review of the deputy commissioner’s decision in the consolidated pr oceeding, specifically raisi ng the issue of whether “claimant sustained a new injury by accident with Interstate” on November 29, 2004. Highway Motors referenced both claims in its request and mailed a copy of the request to claimant and Interstate. Claimant, also refere ncing both claims, filed a timely re quest for review “only [as] to that portion of the [deputy commissioner’s deci sion] which denied payment of temporary total disability benefits from Fe bruary 22 through March 15, 2005.” Claimant mailed a copy of its request for review to Highw ay Motors and Interstate. On November 28, 2005, the full commission issu ed a single judgment reversing the deputy commissioner’s decisions that “claimant was required to market his residual capacity from February 22 through March 15, 2005,” and that “Highway Motors remained liable for . . . claimant’s incapacity and medical expenses af ter November 29, 2004.” With regard to the November 29, 2004 incident, the commission concluded that claimant had su stained a new injury by accident arising out of and in the course of his employment with Interstate and awarded claimant compensation for the post-November 29, 2004 disability period on his alternative claim against Interstate.- 7 - These appeals followed.
II. COMMISSION’S REVIEW OF DE CISION PERTAINING TO INTERSTATE We first address the threshold question, ra ised by Interstate, of whether the full commission erred in reviewing the decision of the deputy commissioner denying compensation on the alternative claim against Interstate. In terstate contends that the commission erred in reviewing the decision because (1) the claims agai nst Highway Motors and Interstate were never formally consolidated and, as a result, the commi ssion’s review should have been limited to the decision on the claim against Highway Motors, an d (2) claimant failed to assign error in his request for review to the decision on the altern ative claim against Interstate, and the commission “cannot review what . . . claimant did not request.” We disagree. Separate claims or actions may, in some circ umstances, be consolidated without a formal order. See Eagles v. Cook , 63 Va. (22 Gratt.) 510, 512 (1872). Indeed, where parties voluntarily participate in a consolidated hearing aimed at th e common resolution of their separate actions or claims, the actions or claims, though not formally consolidated, may be treated as consolidated “in effect.” Id. As the Supreme Court observed in Eagles : [T]wo actions being of the same nature, and between the same parties, [represent] a prope r case for a conso lidation of the actions, and [a] court mi ght properly ex mero motu . . . order[] the cases to be consolidated and hear d together. And while it would [be] the most regular course to . . . enter[] a formal order of consolidation, the failure to make th at entry is not such an error as can be taken advantage of in an Appellate court. The agreement of the parties that the causes [are to] be heard together [is] in effect a consolidation of the two actions. [Thus, where t]he parties and the court treat[] the two actions as one, and a general verdict and judg ment in solido [is] not . . . objected to by the [appellant], [tha t judgment] cannot be said [on appeal] to be erroneous [for lack of consolidation]. Id. at 511-12.- 8 - The alternative claims in the present case , though never consolidated by formal order, were consolidated “in effect.” Prior to the full commission’s review, the claims were litigated and adjudicated on a consolidated basis. Seekin g compensation, in part, for the disability period arising after the November 29, 2004 incident, cl aimant filed alternative claims with the commission and requested that the claims be c onsolidated for hearing. The deputy commissioner consolidated the claims for purposes of the hearing, and cl aimant, Highway Motors, and Interstate all voluntarily part icipated in the hearing wit hout objection. Following the presentation of common evidence, the deputy co mmissioner issued a sing le opinion, wherein he made findings of fact and conclusions of law cen tral to the resolution of both claims. The progression of these claims dem onstrates that they were cons olidated “in effect” by both the parties and the deputy commissioner. As a resu lt, the full commission’s subsequent review was not limited to the decision only as it pert ained to the claim against Highway Motors. 3 Furthermore, the full commission was enab led to review the decision denying the alternative claim against Inters tate even though claimant did not assign error thereto in his request for review. Referencing the alternativ e claims, Highway Motors’s timely request for review raised the issue of Inters tate’s liability. In so doing, the request sufficed to place that issue, and the decision pertaini ng to Interstate, before the full commission for review. Claimant’s timely request also enabled the fu ll commission to consider , “in the interest of justice,” the decision on the alternative claim agai nst Interstate, regardless of whether claimant specifically assigned error to that decision in his request for re view. Arellano v. Pam E. K.’s Donuts Shop , 26 Va. App. 478, 484, 495 S.E.2d 519, 522 (1998); Ratliff v. Rocco Farm Foods ,

3 It is also noteworthy here that Rule 5A:11, entitled “Special Rule Applicable to Appeals From the Virginia Workers’ Compensation Co mmission,” provides that, “[w]henever two or more cases were tried together in the Virgin ia Workers’ Compensation Commission, one notice of appeal and one record may be used to bring all such cases before the Court of Appeals even though such cases were not consolidated by formal order.” Rule 5A:11(f).- 9 - 16 Va. App. 234, 237-38, 429 S.E.2d 39, 41-42 (1993). Because review of the decision pertaining to Interstate’s liability was central to the resolution of the cons olidated claims, review of that decision was in th e “interest of justice.” Therefore, we hold that the full commission di d not err in reviewing the decision of the deputy commissioner denying compensation on th e alternative claim against Interstate.
III. NEW INJURY BY ACCIDENT We next address whether the commission erre d in concluding that claimant sustained a new injury by accident arising out of and in th e course of his employment with Interstate on November 29, 2004. Interstate contends the credible evidence presented in the case failed to prove that claimant sustained a new injury by a ccident on that date, asse rting instead that the November 29, 2004 incident was a natural conseque nce flowing from claimant’s primary injury with Highway Motors on January 14, 2004. We disagree. “Whether a [claimant] has suffe red an ‘injury by accident’ is a mixed question of law and fact. Findings of fact by the . . . [c]ommission will be upheld on appeal if supported by credible evidence. However, whether t hose facts prove the claimant suffered an ‘injury by accident’ is a question of law. The commission’s finding on the legal question is not conclusive and binding upon us, but is properly subject to judicial review. Goodyear Tire & Rubber Co. v. Harris , 35 Va. App. 162, 167-68, 543 S.E.2d 619, 621 (2001) (citations omitted). “When a primary injury under the Workmen’s Compensation Act is shown to have arisen out of the course of employment, every natura l consequence that flow s from the injury is compensable if it is a direct and natural resu lt of a primary injury.” Leonard v. Arnold , 218 Va. 210, 214, 237 S.E.2d 97, 99 (1977). This rule, howe ver, “has no application to a new and separate accidental injury.” Id. That is to say, a new and sepa rate accidental injury is not a naturally flowing consequence of a primary injury. Id. A claimant seeking to obtain disability- 10 - compensation on the theory of a new and separate acci dental injury must prove that “the incident giving rise to the [injury] . . . satisf[ies] each of the requirements for an ‘injury by accident.’” First Fed. Sav. & Loan Ass’n v. Gryder , 9 Va. App. 60, 63, 383 S.E.2d 755, 757 (1989). In order to establish an “injury by accident,” claimant mu st prove that “the cause of his injury was an identifiable incident or sudde n precipitating event and that it resulted in an obvious sudden mechanical or structural cha nge in the body.” Morris v. Morris , 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989) (emphasis omitted). Where a claima nt proves the aforementioned requirements, he may seek compensation against the employer for whom he was working at the time of the accident. See Bd. of Supervisors v. Martin , 3 Va. App. 139, 145, 348 S.E.2d 540, 543 (1986). Issuing a single judgment on the consolid ated alternative claims, the commission concluded from claimant’s testimony and “the weight of the medical evidence” in the record that claimant sustained a new injury by accident on November 29, 2004. In reaching that conclusion, the commission specifically found that the cause of claimant’s injury was the identifiable incident of claimant “hopp[ing] down a distance of two to three f eet from a trailer onto his lower extremities on November 29, 2004, at which time hi s left knee gave way and he experienced immediate left knee pain.” The commission also found that claimant’s injury on that date resulted in obvious sudden mechanical or struct ural change, or more specifically, the “bruis[ing of] the bones” and “increased effusion” in his left knee. Credible evidence in the record supports thes e findings of fact. Th e evidence established that, having sufficiently recovere d from his injury of January 14, 2004, claimant was released by Dr. Daugherty on August 31, 2004, to work full time as a trailer technician w ith no restrictions. Claimant worked for Interstate in that capacity for nearly three months. He completed all tasks required by the employment and di d not seek treatment for his left knee until the accident on November 29, 2004. On that day, claimant was pe rforming a work-related task for Interstate- 11 - inside a trailer car and, in orde r to complete the task, he ex ited the trailer car by hopping down two to three feet to a concrete floor. When he landed, claimant’s left knee buckled and he fell to the floor. The December 16, 2004 MRI findings indica ted that claimant suffered an “increase in the joint effusion” and “extensive bone bruising.” Dr. Daugherty attributed these findings to the November 29, 2004 incident and noted that the MRI findings demonstrated that claimant suffered “multiple significant changes” and “additional significant problems” following the incident. The commission implicitly acknowledged that Dr. Daugherty’s medical notes and opinions contained an internal conf lict as to whether claimant su stained a new injury by accident on November 29, 2004. On at least three occa sions after November 29, 2004, Dr. Daugherty specifically stated in his notes that claimant’s left knee injury was unequivocally related to his primary injury of January 14, 2004. 4 However, Dr. Daugherty, in a later deposition, attributed the manifest structural changes in claimant’s left knee—the “extensive bone bruising” and “increase in the joint effusion”—to the identi fiable incident on November 29, 2004, and noted that claimant suffered “multiple significant changes” and “additional significant problems” as a result of that incident. The commission explaine d and resolved the internal conflict as follows: [A]lthough Dr. Daugherty . . . indi cated that the claimant’s disability and need for treatment [after November 29, 2004,] was “100% related” to the injury occurring on January 14, 2004, and was not related to the events on November 29, 2004, he also acknowledged during his deposition that the claimant bruised the bones of his knee and experienced in creased effusion as a result of hopping down from the trailer bed on November 29, 2004— thereby supporting the conclusion th at the claimant experienced a sudden mechanical or structural change in his body because of the incident on November 29, 2004. Furthermore, Dr. Smith, the orthopedist who examined the claimant’s medical records on behalf of [Highway Motors], rendered an opinion which was essentially consistent with th e opinion offered by Dr. Daugherty when he first examined the claimant after November 29, 2004—

4 These occasions were December 2, 2004, February 17, 2005, and February 22, 2005.- 12 - that is, Dr. Smith opined that the claimant suffered a new injury on November 29, 2004, which was likely to have been caused by the pre-existing weakness in th e claimant’s left knee. As is evident from its analysis, the comm ission rejected Dr. Da ugherty’s opinion that claimant did not sustain a new injury by accident on November 29, 2004, and instead accepted the portions of his notes and opi nion that supported the opposite finding. Specifically, on August 31, 2004, Dr. Daugherty noted that claimant was “ overall . . . doing moderately well” after the January 14, 2004 injury and released him to work with no restrictions. Dr. Daugherty noted that claimant did not seek treatment from Sept ember 7, 2004, until December 2, 2004. On December 2, 2004, following the incident with Interstate, Dr . Daugherty examined claimant and noted that he had “aggravated [his] pre-ex isting condition,” “had been doing moderately well” until the incident, and was “now having significant a dditional problems.” In a later deposition, Dr. Daugherty attributed the structural cha nges shown by the MRI—the “extensive bone bruising” and “increase in the joint effusion” in claimant’s left knee—to the incident of November 29, 2004. The commission also noted th at these portions of Dr. Daugherty’s notes and opinions were consistent with the medical opinion of Dr. Smith, who opined that claimant sustained a “new injury” on November 29, 2004. The commission’s resolution of a conflict in medical evidence, including an internal conflict in an expert’s opinion, is within the pur view of the commission’s fact-finding authority and is binding on appeal if it is supported by credible medical ev idence. Chandler v. Schmidt Baking Co. , 228 Va. 265, 267-68, 321 S.E.2d 296, 297-98 (1984); Sneed v. Morengo, Inc. , 19 Va. App. 199, 205, 450 S.E.2d 167, 170-71 (1994). As pointed out above, there is credible medical evidence in the instant record to support the commission’ s resolution of the conflict in medical evidence. Hence, the commission’s re solution is conclusive and binding upon us.- 13 - Given the findings of the commission and the cr edible evidence in the record in support thereof, we hold that the commi ssion did not err in concluding that claimant sustained a new injury by accident arising out of and in the course of his employment with Interstate on November 29, 2004.
IV. CONCLUSION For these reasons, we affirm th e judgment of the commission. Affirmed.