Uninsured Employer's Fund v Tony Allen Nichols

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
UNINSURED EMPLOYER'S FUND
MEMORANDUM OPINION* BY
v. 	Record No. 1338-99-3 	JUDGE SAM W. COLEMAN III
MARCH 14, 2000
TONY ALLEN NICHOLS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Patricia H. Quillen, Assistant Attorney
General (Mark L. Earley, Attorney General;
John J. Beall, Jr., Senior Assistant Attorney
General, on brief), for appellant.
William H. Fralin, Jr. (Jolly, Place,
Fralin & Prillaman, P.C., on brief), for
appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The Uninsured Employer's Fund appeals the Workers'
Compensation Commission's decision denying the Fund's application
to terminate benefits based upon a change in condition.
The Fund alleged in its application that the claimant was no
longer disabled from the industrial accident and that his residual
disability was unrelated to the accident. 	The Fund argues that
the commission erred in finding that it failed to prove that as of
August 27, 1998, Tony Allen Nichols was no longer disabled as a

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result of the compensable injury. 	We disagree and affirm the
commission's decision.
BACKGROUND
Nichols was employed as a mechanic by Joseph Wright, trading
as Wright's Lawn Service and Automotive Repair (Wright). 	On April
20, 1996, while working for Wright, Nichols was repairing a
vehicle's carburetor when the carburetor backfired and caused
flash burns over twenty percent of Nichols' body, particularly his
right upper arm. 	Nichols was treated at the University of
Virginia Medical Center Burn Center where he underwent skin grafts
to the right upper extremity and forearm and to the right hand and
three fingers of the right hand. 	Nichols filed a claim for and
was awarded temporary total disability benefits. 	Upon finding
that Wright was uninsured, the commission ordered the Fund to
satisfy the award.
In June 1997, Nichols underwent a functional capacities
evaluation (FCE) which revealed that he was limited in his ability
to lift with his left hand. 	Also, he was fifty percent deficient
in right hand grip strength and was unable to sustain a strong
right hand grip for more than two to three seconds at one time.
He was found to be limited in carrying things with his right hand,
working overhead, crawling, and performing activities requiring
fine motor coordination of his right hand. 	If Nichols returned to
work, the evaluator opined that he would require tools with

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built-up handles and that he would be unable to perform activities
requiring sustained or strong repetitive right hand grip strength.
On July 21, 1997, the Fund filed an Application for Hearing,
alleging that Nichols was released to return to his pre-injury
work by Dr. J. Samuel Mitchener, III, a plastic and reconstructive
surgeon who had treated Nichols after the accident. 	Dr. Mitchener
had also previously treated Nichols in 1995 for a blunt trauma
injury to the dorsum of his right hand, sustained while working
for another employer. 	In his report, Dr. Mitchener concluded that
Nichols was able to return "to full work," but he noted that
Nichols "may have difficulties finding employment given the
deficits documented in the FCE." 	Dr. Mitchener opined that
Nichols could perform "many types" of automotive and lawnmower
repairs, despite the fact that he had not been provided a detailed
job description of Nichols' pre-injury work duties. 	The
commission denied the Fund's application.
The Fund filed a second Change in Condition Application,
alleging that Nichols was no longer disabled as a result of the
industrial accident and, except for a residual disability from a
prior unrelated blunt trauma injury, that Nichols would have been
able to return to his pre-injury work as of August 27, 1998. 	The
Fund based its application upon Dr. Mitchener's report dated
August 27, 1998.

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The only evidence in the record delineating Nichols'
pre-injury job duties is his affidavit stating that, as a shop
mechanic and supervisor, he was required routinely to perform many
tasks involving fine manipulation of objects with both hands, many
tasks requiring a strong right hand grip for sustained periods,
lifting heavy objects from floor to waist and carrying objects
with both hands, and crawling and working overhead. 	Prior to the
industrial accident, Nichols never required the use of tools with
"built-up handles" to perform his work.
In June 1998, the Fund set forth in a letter to Dr. Mitchener
the pre-injury job duties as described by Nichols in his
affidavit. 	Dr. Mitchener had no other information detailing
Nichols' pre-injury job duties. 	The Fund requested that Dr.
Mitchener evaluate Nichols and respond to several queries.
Nichols was examined by Dr. Mitchener, and in an August 27,
1998 letter, Dr. Mitchener opined that Nichols was not disabled
due to the burn injury; he stated that "it appears that any
disability . . . may be related to the blunt trauma injury of
September 22, 1995." 	Dr. Mitchener "strongly suspected" that if
Nichols had only the burn injury, he would be able to return to
his pre-injury status as an auto mechanic and supervisor. 	Dr.
Mitchener further noted that Nichols had grip strength problems,
but Dr. Mitchener attributed the problems "almost entirely" to the
blunt trauma injury rather than the burn injury. 	Dr. Mitchener

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opined that Nichols would not likely obtain pre-injury status and
that he would have permanent restrictions based on the lack of
complete extension of the right small finger. 	Dr. Mitchener noted
that Nichols also demonstrated signs of peripheral nerve
irritation and/or compression of unknown etiology. 	Dr. Mitchener
opined that the pain Nichols experiences in the right upper
extremity was either related to ulnar nerve compression at the
right elbow or median nerve compression at the wrist and
recommended that Nichols obtain a complete neurological
evaluation.
The commission found that the Fund failed to prove that
Nichols was able to perform his pre-injury work. 	The commission
noted that Nichols was able to perform his pre-injury work prior
to the industrial accident despite the pre-existing decreased
range of motion in the right fifth digit due to the 1995 blunt
trauma injury. 	The commission found that Nichols' inability to
perform his pre-injury work is evident from Dr. Mitchener's August
27, 1998 report in which Dr. Mitchener noted that Nichols still
experiences grip strength problems, even though Dr. Mitchener
attributed the problems "almost entirely to the earlier blunt
trauma injury." 	The commission found that the Fund had failed to
prove that the peripheral neuropathy, which prevented Nichols from
performing a number of significant pre-injury work duties, was not
related to the industrial accident. 	The commission noted that the

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neuropathy was not present before the industrial accident and that
it was to an area of the body where Nichols sustained extensive
burns and skin grafts.
ANALYSIS
"In an application for review of an award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence." 	Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 438-39, 339 S.E.2d 570, 572 (1986). 	On appeal, we view the
evidence in the light most favorable to Nichols, the prevailing
party. 	See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211,
212, 390 S.E.2d 788, 788 (1990). 	We accept the commission's
factual findings when they are supported by credible evidence.
See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
The commission found that the Fund failed to prove by a
preponderance of the evidence that Nichols' residual incapacity
was not related to the industrial accident. 	The commission stated
that:
[T]he pre-existing [blunt trauma] injury was
to the dorsum of the right hand. 	In the
industrial accident the claimant suffered
partial and full thickness burns
circumferentially of the right upper
extremity from the hand to the shoulder.
Dr. Mitchener opined that the claimant
exhibited symptoms of peripheral nerve
compression at the elbow or wrist, an area
encompassed by the burn injury and not by

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the pre-existing injury . . . . [I]t appears
that these symptoms may be tied in some
fashion to the claimant's assertion that he
cannot now grip with his right hand.
The commission noted further that because Dr. Mitchener
recommended referral to a neurologist to determine the cause of
Nichols' peripheral neuropathy in his right upper extremity, the
commission would not presume that the condition, which had not
existed prior to the burn injury, was not related to the burn
injury. 	The commission noted that Nichols' blunt trauma injury
occurred before Nichols began working for Wright and that nothing
in the record indicates that Nichols' pre-injury work performance
was affected by that injury. 	No evidence exists to indicate that
he experienced grip strength deficiencies, that he was unable to
perform all the functions of the job, or that he required the use
of special tools.
The commission articulated legitimate reasons for giving
little probative weight to Dr. Mitchener's opinions. 	"Medical
evidence is not necessarily conclusive, but is subject to the
commission's consideration and weighing." 	Hungerford Mechanical
Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
Contrary to the Fund's contention, the burden of proof was on the
Fund, whose change in condition application alleged that Nichols'
residual incapacity was unrelated to his industrial accident, to
prove that the disability resulting from the irritation or

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degeneration of the nerves in Nichols' right hand was not caused
by the industrial accident.
Here, the commission found that the Fund failed to carry its
burden of proof in that Dr. Mitchener's evidence did not persuade
them that Nichols' residual incapacity, specifically the lack of
grip strength in the right hand, was unrelated to the industrial
accident. 	Admittedly, Dr. Mitchener opined that Nichols' lack of
grip strength was unrelated to the industrial accident and that it
probably was caused by "peripheral nerve irritation and/or
compression, etiology unknown." 	The commission, however, was not
required to accept Dr. Mitchener's conclusory opinion as to
causation, nor was the commission required to conclude from Dr.
Mitchener's opinion that because the etiology of the nerve
irritation or degeneration was unknown, that the Fund had met its
burden of proving that the disability was not caused by the
industrial accident. 	Quite simply, the commission found that the
Fund's evidence, which consisted of little more than one doctor's
opinion that the cause of Nichols' nerve irritation or
degeneration was unknown, was not convincing, and therefore, not
sufficient to persuade it that Nichols' residual disability was
unrelated to the burns and skin grafts that this twenty-year-old
laborer had suffered.
Because the evidence supports the commission's holding that
the Fund did not prove that Nichols' disability was unrelated to

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his compensable injury, we affirm the commission's denial of the
Fund's application for termination of benefits.
Affirmed.