COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Beales and Alston Argued at Richmond, Virginia

CREATIVE ENERGY CORP ORATION OF RICHMOND AND CINCINNATI INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No . 0314-17-2 JUDGE ROBERT J. HUMPHREYS OCTOBER 3, 2017 RICHARD HOWE

FROM THE VIRGINIA WORKERS ’ COMPENSATION COMMISSION Joseph C. Veith III (Godwin, Erlandson, Vernon & Daney, LLC, on brief), for appellants. Jamie L. Karek (Commonwealth Law Group, on brief), for appellee.

Creative Energy Corporation of Richmond and its insurer (colle ctively, “employer”) appeal the January 26, 2017 decision of the Workers’ Compensati on Commission (the “Commission”) that Richard Howe (“Howe”) suffered an injury tha t was compensable under the Workers’ Compensation Act (“Act”). Employer contends that (1) there was insufficient evidence to prove a causal rela tionship between Howe’s compensable left knee injury and the treatment of his right leg and t hat (2) the Commission erred as a matter of law in finding that Howe’s right leg condition is a compensable consequence of his left knee injury. On February 12, 2010, Howe suffered compensable injury to his l eft knee arising out of and in the course of his employme nt with employer. The injury required multiple surgeries, including an initial ACL recons truction and meniscus repair sur gery and a subsequent arthroscopic debridement of the patella. On October 6, 2015, H owe filed a second claim for

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - coverage of both his lower extr emities. Howe claimed right leg symptoms beginning in 2013

and described that he suffered fro m bilateral lower extremity p ain and loss of use. On January 26, 2017, the Commission found that Howe’s second claim was a c ompensable consequence of Howe’s left knee injury, whic h decision employer now appeals. On appeal from the Commission, “th is Court reviews the evidence in the light most favorable to the prevailin g party . . . .” Van Buren v. August a Cty., 66 Va. App. 441, 444, 787 S.E.2d 532, 533 (2016) (quoting Town & Country Hosp., LP v. Davis, 64 Va. App. 658, 660, 770 S.E.2d 790, 791 (2015)). “[T]his Court is only bound by th e ‘Commission’s findings of fact as long as there was credible evi dence presented such that a re asonable mind could conclude that the fact in issue was proved, eve n if there is evidence in the record that would support a contrary finding.’” Newport News Shipbui lding & Dry Dock Co. v. Wardell Orthopaedics, P.C., 67 Va. App. 404, 412-13, 796 S.E.2d 461, 466 (2017) (quoting Ander son v. Anderson, 65 Va. App. 354, 361, 778 S.E.2d 132, 136 (2015)). “In determining whether credible evidence exists to support the commission’s findings of fact, the appellate court does not retry the facts, reweigh . . . the evidence, or make its own d etermination of the credib ility of the witnesses.” Tex Tech Indus. v. Ellis, 44 Va. App. 497, 504, 605 S.E.2d 759, 762 (200 4) (quoting Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). Taken in that light, the evidence is that Howe reported new neu ropathic pain and other symptoms outside his left knee a short time after the initial A CL reconstruction and meniscus repair surgery. In late 2013, Dr . Daniel Martin, an orthopedic surgeon and Howe’s treating physician since April 2011, first documented neuropathic sympto ms in Howe’s right leg. By October 2013, Dr. Martin diagnosed H owe with complex regional p ain syndrome. On November 10, 2014, Dr. Martin surgica lly implanted a spinal cor d stimulator for the purpose of treating symptoms in Howe’s legs. Though the spinal cord stimu lator initially reduced Howe’s- 3 - pain, Howe developed pain in his l eft foot and ankle as his com plex regional pain syndrome progressed. On July 12, 2016, Dr. Martin testif ied via deposition testimony . Dr. Martin testified that, more likely than not, Howe suffe red an injury around the area o f the saphenous nerve that resulted in the initial pain i n Howe’s left leg. Dr. Martin co nfirmed this opinion to a reasonable degree of medical probabilit y. Dr. Martin, however, was not ab le to state, within a reasonable degree of medical probability, tha t the injury to the saphenous nerve was the result of Howe’s original February 12, 20 10 injury or the surgeries that followe d.

Dr. Martin also testified to the circumstances leading to neuro pathic pain in Howe’s right leg. Dr. Martin opined that Howe’s right leg symptoms develope d from a pain generator spreading from Howe’s left leg, into Howe’s central nervous sys tem, and eventually into Howe’s

other extremities. Dr. Marti n confirmed his opinion within a r easonable degree of medical probability. Dr. Martin also tes tified that he believes that H owe’s complex regional pain syndrome is related to Howe’s or iginal injury, within a reasonable degree of medical probability. Employer presented no medical opini ons contradicting Dr. Martin

. Employer argues that the Commissi on’s determination was not sup ported by credible evidence in the record. To support this first assignment of er ror, employer alleges that the compensable consequences doctr ine limits its liability. In Vir ginia, it is well-established that the liability of an employer for an accidental injury extends to al l of the medical consequences and sequelae 1 that flow from the original i njury. The compensable consequen ces doctrine, however, requires a “link of causation” t hat “directly connect[s] the or iginal accidental injury with the additional injury for which com pensation is sought.” Amoco Foa m Prods. Co. v. Johnson, 257

1 A sequela is a pathological condition resulting from a disease , injury, therapy, or other trauma. Typically, a sequela is a chronic condition that is a complication which follows a more acute condition. It is different from, but is a consequence of , the first condition.- 4 - Va. 29, 33, 510 S.E.2d 443, 445 (1999) (relying, in part, on Im mer & Co. v. Brosnahan, 207 Va. 720, 721-22, 152 S.E.2d 254, 255 (1967)). “Where such a causal link exists, the doctrine of compensable consequences extends the coverage of the Workers’ C ompensation Act to the subsequent injury because the s ubsequent injury is treated as i f it occurred in the course of and arising out of the employee’s em ployment.” Berglund Chevrolet, Inc. v. Landrum, 43 Va. App. 742, 751, 601 S.E.2d 693, 697 (2004). The compensable consequences doc trine is also limited in applic ation. Evidence in the record “must directly connect t he original accidental injury wi th the additional injury for which compensation is sought.” Amoco Foam Prods. Co., 257 Va. at 33, 510 S.E.2d at 445. In a compensable consequences claim , the issue is “essentially one o f whether the medical evidence proves a causal relationship be tween the primary injury and the subsequent occurrence.” Berglund Chevrolet, Inc., 43 V a. App. at 751, 601 S.E.2d at 697 . It follows that the Commission may consider numerous evidentiary sources in making a causal re lationship determination. More specifically, “[c]au sation of a medical condition may be proved by either direct or circumstantial evidence, including medical evide nce or ‘the testimony of a cla imant.’” Farmington Country Club, Inc. v. Marshall , 47 Va. App. 15, 26, 622 S.E.2d 233, 239 (2005). Relying on the compensable conseq uences doctrine, employer argu es that, because

Dr. Martin cannot state to a reas onable degree of medical proba bility when Howe’s saphenous nerve injury occurred or what caused it, Howe failed to meet hi s burden. Employer’s point, however, goes only to the weight of the evidence, not its proba tive sufficiency. Additionally, the mere fact that a physician cannot de termine the cause of a clai mant’s pain does not prove a lack of medical causation. See Herbert Bros. v. Jenkins, 14 Va. App . 715, 718-19, 419 S.E.2d 283, 285 (1992) (noting that, although th e claimant’s treating physi cian was unable to physically explain the claimant’s subjective complaints, the fact that the treating physician attributed the- 5 - condition to the injury and othe r evidence in the record suppor ted the Commission’s findings of fact). In his July 12, 2016 deposition, Dr. Martin opined that, within a reasonable degree of medical probability, an injury t o Howe’s saphenous nerve caused Howe’s right leg symptoms. Dr. Martin also explained that Howe ’s complex regional pain syn drome developed and spread as a result of Howe’s original l eft knee injury. As addressed by the Commission, “[w]hile Dr. Martin cannot say exactly whe n he believes the saphenous ne rve was injured, it remains his opinion that it was injured, and tha t the resulting pain syndro me is directly related to the original left knee injury.” Employer’s second assignment of err or alleges that, at best, th e evidence can only establish that Howe’s right le g condition was a consequence of a compensable consequence and, thus, not compensable. In support of its argument, employer ci tes Amoco Foam Prods. Co., 257 Va. 29, 510 S.E.2d 443, which stands for the proposition that aclaimant is barred from recovering for an injury caused by a compensable consequence, o r a “consequence of a compensable consequence.” Id. at 31-32, 510 S.E.2d at 443-44. Employer also relies on Paul Johnson Plastering v. Johnson, 265 Va. 237, 576 S.E.2d 447 (200 2). There, the Court applied Amoco Foam and determined that the claimant’s brain injury was not compensable because it constituted a consequence of a c ompensable consequence. Id. at 244-45, 576 S.E.2d at 451-52. The present case is easily distinguished f rom those cited by em ployer. Here, all of Howe’s symptoms developed from a pain generator in his left leg . As previously noted, Dr. Martin opined that, within a reasonable degree of medical p robability, an injury to Howe’s saphenous nerve resulted in Howe’ s right leg symptoms. Dr. Mar tin also explained that Howe’s complex regional pain syndrome developed and spread as a result of Howe’s original left knee injury. Employer presented no m edical opinions contradicting D r. Martin. Furthermore, in both- 6 - cases cited by employer, the cla imed injuries occurred in diffe rent body parts and resulted in different conditions than the orig inal compensable injuries. In addition to the distinguishable nature of the cases that emp loyer relies on, employer’s second assignment of e rror fails for the same reason as its suf ficiency of the evidence claim. Agreeing with Dr. Martin, the C ommission found that a causal re lationship exists between Howe’s original compensable inj ury and his right leg symptoms. The Commission’s determination is a finding of f act based on credible evidence. As a result, employer’s argument goes only to the weight of the ev idence, not its probative suff iciency. Concluding that credible evid ence supports the Commission’s fi nding of a causal relationship between Howe’s comp ensable left knee injury and th e treatment of Howe’s right leg,

we hold that the Commission did not err in granting Howe’s Octo ber 6, 2015 claim.

Affirmed.