Doris Patricia Cote v Western State Hospital, etal

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Frank
DORIS PATRICIA COTE
MEMORANDUM OPINION*
v. 	Record No. 1390-99-3 	PER CURIAM
OCTOBER 26, 1999
WESTERN STATE HOSPITAL AND
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Linda D. Slough; Chandler, Franklin &
O'Bryan, on briefs), for appellant.
(Mark L. Earley, Attorney General; Judith
Williams Jagdmann, Deputy Attorney General;
Gregory E. Lucyk, Senior Assistant Attorney
General; Donald G. Powers, Assistant Attorney
General, on brief), for appellees.
Doris Patricia Cote (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove that her psoas abscess was causally related to
her compensable April 3, 1998 injury by accident. 	Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. 	Accordingly, we summarily
affirm the commission’s decision. 	See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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Unless we can say as a matter of law that claimant’s evidence
sustained her burden of proof, the commission’s findings are
binding and conclusive upon us. 	See Tomko v. Michael's
Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On April 3, 1998, claimant was injured while working for
Western State Hospital (employer), when she stubbed her toe on a
portion of uneven sidewalk while walking from one duty area to
another. 	Claimant fell, attempted to break her fall with her
right hand, and hit her chin on the sidewalk. 	She suffered
abrasions to her right hand and chin. 	Subsequent medical
treatment revealed that claimant was suffering from an abscess
in the psoas muscle.
On May 14, 1998, claimant's treating physician, Dr. Bruce
Schirmer, initially opined that Cote "had no obvious origin for
this abcess . . . ." 	In July, 1998, in response to questions
from the Virginia Department of Risk Management, Dr. Schirmer
opined that the right psoas abscess was not causally related to
the April 3, 1998 work-related injury.
In a chart note of April 24, 1998, an unnamed consultant on
infectious diseases suggested as follows: 	"Staph aureus most
likely developed [as a result of] seeding from a transient
bacteremia [at] hand scrape upon fall 4/3," resulting in a psoas
abscess.

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On July 30, 1998, in response to a letter from claimant's
attorney, Dr. Schirmer stated that the infectious disease
consultant had opined that claimant's staph infection was likely
derived from the abrasions she sustained in the April 3, 1998
fall. 	Dr. Schirmer further stated that he did not have "any
other explanation for why [claimant] developed a staph abscess
in her psoas." 	Dr. Schirmer concluded that "attributing the
staph abscess to a bacteremia from such a scrape would be
certainly possible. 	I would support that hypothesis given no
other information."
Dr. Sara Monroe, an Associate Professor in the Division of
Infectious Diseases at Virginia Commonwealth University,
reviewed claimant's entire medical file at the request of
employer. 	Dr. Monroe opined to a reasonable degree of medical
certainty that claimant's right psoas abscess was not causally
related to the April 3, 1998 work-related fall. 	Dr. Monroe
noted that claimant began complaining of back pain as early as
the day after the fall and that she sought medical treatment
within nine days of the fall. 	Dr. Monroe opined that "[a]n
abscess of the size described on CT scan . . . would take
considerably longer than 9 days to develop." 	Dr. Monroe noted
that "[p]soas abscesses generally occur by spread of infection
from adjacent structures and rarely occur by bacteremic spread."
Dr. Monroe pointed out that the April 15, 1998 CT scan suggested

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that claimant suffered from "severe osteoarthritis of the lumbar
spine, a chronic condition which may result in a predisposition
to vertebral osteomyelitis or facet joint infection. 	The MRI
performed at UVA on 4/21 showed L4-5 facet joint degeneration
with an adjacent fluid collection possibly representing a septic
arthritis in this area." 	Dr. Monroe concluded that claimant's
psoas abscess occurred as a result of spread
from a septic arthritis involving the L4-5
facet joint in the setting of severe
degenerative arthritis involving the lumbar
spine. 	This infection was probably
developing for a considerable time (4-6
weeks) before it became large enough to
cause severe symptoms. 	[Claimant's] fall on
4/3 was coincidental and the minor abrasions
she suffered were not causally related to
her psoas infection.
In denying claimant's application, the commission found as
follows:
We find that the claimant has, at most,
presented evidence that suggests two or more
equally likely causes of the claimant's
psoas abscess. 	Since we found the opinion
of the claimant's treating physician
entitled to less deference for lack of an
independent, objective basis for his
diagnosis, we accord the conflicting, expert
testimony of the employer's independent
medical examiner at least as much weight as
that of the treating physician. 	None of the
other physicians involved offered an opinion
that any particular cause "more likely than
not" caused the claimant's psoas abscess.
In view of the conflicting medical evidence
and the record as a whole, we find that the
claimant has failed to meet her burden of
proving that the treatment and disability
resulting from her psoas abscess was

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causally related to the compensable injury
on April 3, 1998.
"Questions raised by conflicting medical opinions must be
decided by the commission." 	Penley v. Island Creek Coal Co., 8
Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). 	The commission
articulated legitimate reasons for giving little probative
weight to Dr. Schirmer's July 30, 1998 letter, in which he
adopted the opinion of the unnamed infectious disease
consultant. 	In light of these reasons and Dr. Monroe's
opinions, the commission was entitled to conclude the conflicts
in the medical evidence rendered it insufficient to prove that
claimant's psoas abscess was causally related to her compensable
April 3, 1998 work-related fall. 	"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).
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that the evidence sustained claimant's burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.