COURT OF APPEALS OF VIRGINIA

Present: Judges Chaf in, Russell and AtLee Argued at Richmond, Virginia

CARNELL CARRINGTON MEMORANDUM OPINION * BY v. Record No. 0628-17-2 JUDGE RICHARD Y. ATLEE, JR. JANUARY 23, 2018 AQUATIC COMPANY AND INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Michael J. Beste (Reinhardt/H arper/Davis, PLC, on brief), for appellant. John C. Johnson (Frith Anderson & Peake, P.C., on brief), for appellees.

Carnell Carrington appeals a de cision of the Commission denying his request for disability benefits. We find no e rror, and affirm the decision

. I. BACKGROUND On appeal of Commission decisions , “the evidence and all reaso nable inferences that may

be drawn from that evidence are viewed in the light most favora ble to the party prevailing below.” UPS v. Prince, 63 Va. App. 702, 704, 762 S.E.2d 800, 8 01 (2014) (quoting Snyder v. City of Richmond Police Dep’t, 62 Va. App. 405, 408, 748 S.E.2d 650, 652 (2013)). The Commission found in favor of Aquatic Company and Insurance Comp any of the State of Pennsylvania (collectively “empl oyer”). The facts were as foll ows.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Aquatic Company hired Carrington in 1992. At the time of the hire, Aquatic Company knew that Carrington suffered f rom polycystic kidney disease. 1 In 2013, Carrington suffered a compensable injury to his left arm. The injury was unrelated t o his polycystic kidney disease.

The Commission entered a medi cal award in 2014 for the injury t o his arm. In 2015, Carrington sought temporary total disab ility, beginning October 2, 2014 an d continuing. The Commission summarized the facts surrounding Ca rrington’s claim as follow:

He missed three weeks from wor k following his initial surgery a nd then returned to light duty w ith the employer, working 40 hours per week, using his right a rm, beginning in November 2013. The parties agree the claimant has permanent work restrictions attributable to his left arm injury. The claimant worked light duty for the employer through October 2, 2014. On that date, he was admitted to the hospital with kidney failure, a compli cation of his underlying polycysti c kidney disease. He remained hos pitalized through February 2015 and after discharge, he received two months of home health care

. On cross-examination, the claim ant agreed that prior to his August 2013 work accident, he was working without any restrictions. He was taking medication for elevated blood pres sure and for his kidneys. He had no othe r health concerns. He agre ed that “even though you had this ki dney disease, you weren’t disabled from it” and “[i]t had notmanifested itself until the following year when [he] had t o go back to [the hospital].” (Citation omitted) (alt erations in original). The parties subm itted written stipulations, including that Carrington had “been unabl e to work from October 2, 2014 a nd continuing due to polycystic kidney disease, while at the sa me time partially disabled due t o his work-related left arm injury.”

1 This disease did not affect the type of work Carrington did fo r Aquatic Company, although it did require him to miss work on occasion. Per the Commission, the disease required that Carrington “undergo treatm ent every two weeks, missing wor k during this treatment. In 2006, the claimant underwent a kidn ey transplant, and he missed approximately four months from work in connection with tha t surgery. He continued to und ergo treatment for his kidney condition after the transplant , attending appointments every th ree months.”- 3 - Employer defended on the ground that Carrington’s disability wa s caused not by a work-related injury, but by his unrelated kidney problem. The deputy commissioner awarded Carrington the requested benef its. Employer requested review by the Full Co mmission, which reversed the dep uty commissioner. The

Commission reasoned as follows: Viewed broadly, the claimant’s ultimate disability was due to t he progression of a kidney disease wh ich predated the accident. .

. . Though the kidney disease predated his accident, it was not disabling and did not restrict th e claimant’s ability to accept the light duty work. What ultimately compelled the claimant’s hospitalization and corresponding r efusal of employment was kidney failure, a condition that manifested after the accident.

. . . Considering the facts before us, we find the claimant’s kidney failure to be a condition w hich arose since his accident and is responsible for his disabi lity. . . . Relevant to our concl usion is the claimant’s two-plus decades of working for the employer wit h kidney disease but without associ ated restrictions. We cannot ignore that the condition did not prevent the claimant’s accept ance of the light duty work. Only a fter many months of steady employment in the light duty pos ition did the dis ease progress to the point that it compelled the claimant to discontinue his employment. We must also acknowledge the claimant’s concession that, but for his kidney failure, he w ould have remained employed. .

. . When dealing with job refusals for unrelated conditions, we are mindful of the wisdom of cla ssifying as unjustified only th ose which result from causes arisi ng since the accident. But for t his qualification, an unprincipled emp loyer could manufacture an unjustified refusal by offering li ght duty work incompatible wi th an employee’s pre-existing physical limitations. In such a scenario, an injured employee would be placed in the untenable position of either accepting work the y were unable to perform o r risk[ing] the loss of disabili ty benefits by refusing the job. However, our holding in the presen t case does not implicate thi s policy or invite employer misc onduct as the claimant had no pre-accident restrictions asso ciated with his longstanding kidn ey condition. His ultimate hospitalization and corresponding unemployment was occasioned by an event, kidney failure, which- 4 - did not exist when he was injur ed or when his light duty job wa s offered. (Footnote omitted). Carrington then noted this appeal.

II. ANALYSIS Carrington assigns the following errors: 1. The Virginia Workers’ Comp ensation Commission erroneously held that Mr. Carrington refuse d selective employment despite being totally disabled in conn ection with polycystic kidney disease that the employer knew pre-existed the work accident and partially disabled in connect ion with work-related left arm injuries. 2. The Virginia Workers’ Comp ensation Commission erroneously rejected the parties’ stipulati ons that Mr. Carrington remains totally disabled in conneciton [ sic] with pre-existing polycyst ic kidney disease. (Capitalization altered). “A claimant [before the Commission] must prove his case by a pr eponderance of the evidence.” Pro-Football Inc. v. Paul, 39 Va. App. 1, 10, 569 S .E.2d 66, 71 (2002) (quoting Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981)). Furthermore, “decisions of th e [C]ommission as to questions of fact, if supported by credible ev idence, are conclusive and bin ding on this Court.” Allen & Rock s, Inc. v. Briggs, 28 Va. App. 662 , 672, 508 S.E.2d 335, 340 (1998). Evidence to the contrary in t he record “is of no consequence if the re is credible evidence to support the [C]ommission’s findi ngs.” Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). The consideration and weight to be giv en to the evidence, including medical evidence, are within the sound discretion of the [C]ommission. Id. at 10-11, 569 S.E.2d at 71. Howev er, “conclusions of the C ommission on questions of law, or mixed questions of law and f act, are not binding on review.” McKellar v. Northrop Grumman Shipbuilding, Inc., 290 Va. 349, 354, 777 S.E.2d 857, 860 (2015 ).- 5 - A. Cause of Disability Carrington argues that he was e ntitled to benefits because of a concept known as the “two causes rule,” which “provides t hat a condition which has two ca uses, one related to a work injury, and one not, is compensabl e and the treatment of that c ondition will be the responsibility of the employer.” Haftsavar v. All Am. Carpet & Rugs, Inc., 59 Va. App. 593, 600, 721 S.E.2d 804, 808 (2012) (quoting Papco Oil v. Farr, 26 Va. App. 66, 75, 492 S.E.2d 858, 862 (1997)). Although the two causes rule prov ides the general framework for analysis, the Supreme Court recognized an exception to the rul e in American F urniture Co. v . Doane, 230 Va. 39, 334 S.E.2d 548 (1985). In that case, the Com mission had “ruled that an em ployee was justified in refusing selective employment because of a physical impairment arising a fter and unrelated to the

industrial accident for which c ompensation had been awarded.” Id. at 41, 334 S.E.2d at 549. The Supreme Court reversed, a nd held that “[a]n employer . . . is absolved of liability for compensation if the employee refuses selective employment becau se of a physical condition unrelated to the original industr ial accident and arising since the accident.” Id. at 43, 334 S.E.2d at 550. A contrasting factual scen ario was presented in James v. Capitol Steel Construction Co., 8 Va. App. 512, 382 S.E.2d 487 (1989). There, a panel of this Court observed that Doane did not “compel[] the conclusion that employment suitable to the employ ee’s residual capacity does not require consideration of a conditi on which pre-existed the inju ry by accident and which was obvious to the employer when the e mployee was hired.” Id. at 5 16, 382 S.E.2d at 489. Carrington notes that his polyc ystic kidney disease, while unre lated to his work injury, pre-existed that injury. He a lso observes that Aquatic Company knew for decades that he suffered from polycystic kidney di sease. Thus, Carrington argu es, the Doane exception to the two causes rule does not apply. We disagree.- 6 - Here, the Commission found that, w hile Carrington did suffer fr om a condition that predated his employment with A quatic Company, the ultimate reas on Carrington was unable to work was a progression and worsening of that condition. As the Commission observed, “[t]hough the kidney disease predated his accident,” the co ndition that “ultimately compell ed the claimant’s hospitalization and c orresponding refusal of employm ent was kidney failure , a condition that manifested after the accident.” (Emphases added). When a non-work-related disability prevents a partially disable d employee from returning to his or her pre-injury work or from accepting selective employment, f or purposes of the [Workers’ Compensation] Act, the unrelated di sability is not justificatio n for the employee to refuse or not to p erform selective employment . . . . Thus, the inability of a disabled employee to do selec tive work . . . due to an unrelated disabi lity is equivalent to an unjustified refusal of s elective employment. Eppling v. Schultz Dining P rograms, 18 Va. App. 125, 130, 442 S .E.2d 219, 222 (1994) (citation omitted). We agree with the Commi ssion that an award of the re quested benefits under these

circumstances would risk “conver ting the Act into a form of hea lth insurance or imposing liability for a condition unrelate d to the employee’s work.” A s such, the Commission did not err when it found that the two causes rule did not apply and when i t declined to awa rd Carrington the requested benefits. B. The Parties’ Stipulation Carrington also argues that t he Commission wrongly rejected th e parties’ factual stipulation that he had “been una ble to work from October 2, 20 14 and continuing due to polycystic kidney disease, while a t the same time partially dis abled due to his work-related left arm injury.” He asserts that t he Commission’s factual findings directly contradicted that stipulation, specifically its fi nding that Carrington’s “ultima te hospitalization and corresponding unemployment was occasioned by an event, kidney failure, which did not exist when he was injured or when his light duty job was offered.”- 7 - Assuming that the Commission, as a factfinder, is not free to reject a stipulation of the parties, 2 we conclude that acceptance of the stipulation did not require the Commission to find in Carrington’s favor. Here, the Commission considered t he stipulation that Carringto n had “been unable to work from October 2, 2014 and con tinuing due to polycystic kidn ey disease, while at the same time partially disabled due to hi s work-related left arm injury .” However, the Commission observed, “[t]hough the kidney disease predated his accident,” th e condition that “ultimately compelled the claimant’s hosp italization and corresponding refu sal of employment was kidney failure , a condition that manifested after the accident.” (Emphases added). This finding was not contrary to the stipulation, rat her it was a narrower, more spe cific finding than the general

conclusion contained in the s tipulation. Even assuming, withou t deciding, that the Commission was bound to accept the parties’ factual stipulation, it was no t required to accept such a stipulation in a vacuum, or to bli nker itself against other rel ated evidence. We find that it was not a rejection of the parties’ s tipulation when the Commission found, essentially, that Carrington’s inability to work was due to polycystic kidney dis ease which resulted in kidney failure, a distinct event and cons equence which occurred after the work-related accident. Carrington would have us read the stipulation to mean that emp loyer agreed to the compensability of the claim when it entered into the stipulatio n. Given that employer consistently defended against the claim, it is clear that this was not employer’s intention. Like the Commission, we read the stipul ation as a pie ce of evidence to be weighed against all of the

2 Although “ a party agreeing to a stipulation must be bound by it ,” King William Cty. v. Jones, 65 Va. App. 536, 548, 779 S.E.2d 213, 219 (2015) ( en banc ) (emphasis added), at oral argument, Carrington conceded t hat he was unaware of any case s tating that the Commission was required to accept such a sti pulation. Oral Argument Audio at 6:54-7:20 (Nov. 14, 2017). However, we need not resolve t hat question, because we find tha t here, the Commission did not reject the parties’ stipulati on, but rather, considered it alon g with the oth er evidence.- 8 - other evidence, no more dispositiv e in Carrington’s favor than Carrington’s testimony that, but for his kidney failure, he would ha ve remained employed, is dis positive in employer’s favor. The Commission was required to c onsider both pieces of evidence (and all of the other evidence) in making its determination. Because there is evidence to supp ort the Commission’s factual conclusion regarding the disabili ty, that conclusion is binding on appeal. Paul, 39 Va. App. at 10-11, 569 S.E.2d at 71.

III. CONCLUSION

The Commission did not err when i t found that the two causes ru le did not apply, nor did the Commission reject the stipul ation of the parties as to the cause of Carrington’s inability to

work.

Affirmed.