COURT OF APPEAL S OF VIRGINIA

Present: Judges Humphr eys, 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 US A, INC. AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Jamie L. Karek (Geoffrey R. McDo nald & Associates, on brief), for appellant. Michael N. Salveson (Hunton & Williams, on brief), for appellees.

Charles Lee McDaniel, Jr., (claimant) appe als a decision of the Workers’ Compensation Commission (commission) terminating his tem porary total disabili ty benefits upon the application of Philip Morris USA, Inc., and Indemnity Insurance Company of North America (collectively, employer). Claimant conte nds the commission erred in finding his ongoing disability was not causally related to his compen sable injury. Finding no error, we affirm the

commission’s decision. As the parties are fully conversant with th e 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 this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designa ted for publication.- 2 - I. BACKGROUND In 1982, claimant tore his left knee menisc us and underwent corrective surgery after

which he missed four to five months of work w ith a different employer. Later in 1994, claimant twisted his left knee working for employer. For that injury, claimant t ook anti-inflammatories and missed no work. At some point, claimant was diagnosed with arthriti s 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 shot s for his left knee pain. Claimant knew he required a total knee replacement prior to his compensable injury. During the year before his compensable injur y, claimant worked full duty. He had some knee pain and took prescription medication occasi onally. In May, June, and July 2004, claimant took no pain medication for his knee. Except fo r a cortisone injection he received in May 2004, claimant’s left knee was feeling “really good” pr ior 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 compen sable 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, employe r paid claimant temporary total disability benefits for the period July 17, 2004, through May 5, 2005. Immediately following claimant’s injury by accid ent, he suffered pain and swelling of his left knee. He relied on crutches after the injury and experienced a “givin g way sensation” in his knee. Dr. Higgs evaluated claimant on Ju ly 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 docu mented several evaluations of claimant and also noted claimant’s reports of post-surgery recovery. In one account dated September 21, 2004,- 3 - 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 [sym ptoms] as present prior to the surgery.” Dr. Hi ggs’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 ha d 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 ev aluation of claimant, Dr. Higgs noted that claimant’s left knee was “still pain ful” and that claimant wa s “making slow steady pr ogress.” He diagnosed: “Slow recovery from his wo rk injury in the setting of pre- existing osteoarthr itis.” Dr . Higgs recommended proceeding with knee replacement surg ery if claimant did not improve within four weeks. He further noted, however, that “the kn ee joint replacement surger y [would] not be related to the injury he su stained at work.” Claimant’s physical therapist, Jess Brow n, documented that claimant expressed improvement in status on September 30, 2004; th at on October 4, 2004, he ha d slightly less pain than at his previous session; th at on October 19, 2004, he stated “his knee overall is a little better as he is having less difficulty and pain with walk ing” 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 cl aimant was “continuing to have pain which [was] sharp and stabbing and achin g 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 pa tient is not cleare d to return to- 4 - 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 insure r 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 pr e-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 th e condition for which you referred Mr. McDaniel to Dr. Jessup [for knee replacement surgery] is related to his i ndustrial 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, 20 05, Dr. Higgs selected “no” when asked whether claima nt’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, writin g that claimant’s July 16, 2004 work-related injury was “adequately tr eated” by the September 8, 2004 surgery. Dr. Higg s added that claimant had a total knee replacement pla nned before the July 16 accident. On May 3, 2005, employer file d an application to terminat e claimant’s temporary total disability benefits on the ground that his ongoing di sability was not causal ly related to his compensable injury by accident. The deputy comm issioner held a hearing on employer’s application on September 26, 2005. At that hearing, claimant test ified that, despite the September 8, 2004 surgery, he continued to have significant and de bilitating left knee pain. However, on cross-exam ination, claimant could not explain his own statements to Dr. Higgs reporting he had no significant pain and that the sharp- 5 - stabbing pain had been resolved after his September 8, 2004 surg ery. Claimant acknowledged he tried to answer Dr. Higgs’s qu estions as best he could. Following the hearing, the deputy commissione r found employer’s evidence insufficient to prove claimant’s ongoing disability was unrel ated to the compensable injury and denied employer’s application to terminate claimant’s te mporary total disability benefits. Upon review, the commission reversed the deputy commissione r’s judgment and terminated temporary total disability benefits. In reaching that decision, the commi ssion noted the question of disability was essentially a medical one and reli ed on Dr. Higgs’s consistent st atements that claimant’s ongoing disability was not causally rela ted to the compensable injury. This appeal by claimant followed.

II. ANALYSIS On appeal, claimant contends that, be cause Dr. Higgs opined that claimant’s compensable injury aggravated his pre-existing knee problems, “it is cl ear 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 comp ensable 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 factua l findings of the commission are conclusive and binding on a ppeal if supported by credible evidence in the record. Southe rn 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 th e 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 Comp anies/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- 6 - evidence exists, the appellate c ourt does not retry the facts, reweigh the preponderance of th e 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 rela ted to his compensable injury. The medical record and claimant’s testimony re flect that claimant su ffered 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 arthro scopies in the late 1990s and 2001, and several

cortisone shots and other medications to allevi ate 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 a nd return to pre-injury status. Dr. Higgs’s post-surgery reports reveal that cl aimant’s pre-surgery pain and m echanical symptoms in his left knee were resolved by the surgery. Claimant’s physical therapist documented claimant’s statements of improving status a nd decreased pain in his left kn ee. Later, Dr. Higgs stated

claimant’s osteoarthritis was not “a direct result of the injurysustained at work” and, having “arthroscopically addressed” the compensable inju ry, he anticipated clai mant would return to “pre-injury status and re sume treatment with Dr. [Kiritsis] for his ongoing osteoarthritis.” In other post-surgery records, Dr. Higgs opined that cl aimant’s work injury occurred in the setting of “pre-existing osteoarthrit is” 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 . . . , wh ich aggravated a pre-existing condition in his left knee,” and that the September 8, 2004 surgery “a dequately treated” the compensable injury. Moreover, as he had discussed on several occas ions with claimant, Dr. Higgs recommended a- 7 - total knee replacement for the “injury pathology a ssociated with previous work injury and pre-existing osteoarthritic process.” As the commission noted, Dr. Higgs offere d the only medical opinion on the issue of causation. From Dr. Higgs’s medical records and opinions, the commi ssion could reasonably determine, as a matter of fact, that the compen sable 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 preponde rance of the evidence, and the resolution of conflicting inferences fairly deducible from th e 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) (cita tion omitted). Although some of Dr. Higgs’s responses and statements regard ing the causal connection between claimant’s ongoing disability and his compensable injury may arguably conflict wi th each other, the commission, as fact finder, was entitled to dete rmine 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 clai mant’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 th e judgment of the commission.

Affirmed.