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Interim Personnel and Zurich American Insurance Co. v. Turner

Court of Appeals of Virginia

May 20, 1997

INTERIM PERSONNEL AND ZURICH AMERICAN INSURANCE COMPANY
v.
JAMES G. TURNER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

C. Ervin Reid (Wright, Robinson, Osthimer & Tatum, on briefs), for appellants.

Zenobia J. Peoples for appellee.

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole.

MEMORANDUM OPINION [*]

MARVIN F. COLE, JUDGE

Interim Personnel and Zurich American Insurance Company (collectively " employer") appeal from a decision of the Workers' Compensation Commission (" commission") holding them responsible for the cost of James G. Turner's (" claimant") hip replacement surgery. Employer contends that the commission erred in finding that claimant's hip injury and need for hip replacement surgery were causally related to his compensable injury by accident. Finding no error, we affirm the commission's decision.

Background

On appeal, we review the evidence in the light most favorable to the party prevailing below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). So viewed, the evidence established that claimant, who worked as a temporary laborer for employer, sustained an injury to his right leg in a work-related accident on September 13, 1995. He initially complained of a " popping" in his right thigh. Claimant thought he had just pulled a muscle and did not immediately seek medical attention. He continued working through September 21, 1995, by which time the pain in his leg had worsened to the point that his supervisor sent him home.

On September 27, 1995, the claimant formally notified the employer of the injury, although he had reported it to his supervisor on September 13, 1995. Employer made an appointment for claimant to see Dr. Arthur D. Bragg at Metropolitan Hospital on September 28, 1995. At the time, claimant complained of pain in his right leg and in the right groin area. Dr. Bragg diagnosed claimant as having an injured sartorius muscle in the upper half of the right thigh.

Claimant sought medical attention again on October 2, 1995. Claimant continued to complain of muscle pain in the right thigh. The treating physician referred claimant to Dr. Vincent Dalton, an orthopedist.

Claimant saw Dr. Dalton on October 4, 1995, and complained of right hip pain. Dr. Dalton wrote that claimant's right hip pain " began on 9-13-95 at work after he got trapped between two pallets and suffered a twisting injury to his rt. hip." Dr. Dalton continued that " [x]-rays of the rt. hip show a rather large area of what appears to be avascular necrosis [(" AVN")] with a large area of collapse and femoral-head incongruity. This appears to be an acute subchondral collapse." Dr. Dalton confirmed his diagnosis of osteonecrosis after reviewing the results of an MRI conducted by Dr. Maurice F. Mullins on October 9, 1995. [1] On October 12, 1995, Dr. Dalton released claimant to perform light duty work, but advised that claimant would require hip replacement surgery in the near future.

Claimant had no prior history of hip problems. Theodora Parham, claimant's former supervisor, testified that, prior to September 13, 1995, claimant had not complained to her of hip or groin pain. She also testified that he did not begin limping until after the accident. On the day Parham sent claimant home from work, he was in such pain that Parham " could literally almost feel it [herself]."

At employer's request, Dr. Bernard Lublin conducted a review of claimant's medical records. In his subsequent report, Dr. Lublin wrote:

Dr. Dalton's evaluation on 10/4/95 indicates x[-]rays demonstrating " a large area of collapse and femoral head incongruity[." ] This indicates a longstanding problem . . . . This avascular necrosis, therefore, pre-existed the work related injury, and definitive treatment (i.e. total ...

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