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AMERICAN SERVICE CENTER, et al. v. MAUCK




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AMERICAN SERVICE CENTER, et al.

v.

MAUCK


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Willis

Record No. 2163-03-4

AMERICAN SERVICE CENTER AND

CONNECTICUT INDEMNITY COMPANY

v.

RANDY G. MAUCK

 

MEMORANDUM OPINION#1 PER CURIAM

DECEMBER 16, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Joseph F. Giordano; Vanessa L. Crockett; Semmes, Bowen &

Semmes, P.C., on brief), for appellants.

(Gregory P. Perigard; Burgess, Kernbach & Perigard, PLLC, on

brief), for appellee.

American Service Center and its insurer (hereinafter referred to
as "employer") contend

the Workers’ Compensation Commission erred in finding that
Randy G. Mauck (claimant)

proved he sustained a brain injury as a result of his
compensable July 19, 2000 injury by

accident. Upon reviewing the record and the parties’ briefs,
we conclude that this appeal is

without merit. Accordingly, we summarily affirm the commission’s
decision. Rule 5A:27.

On appeal, we view the evidence in the light most favorable to
the prevailing party

below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212,
390 S.E.2d 788, 788 (1990).

In its role as fact finder, the commission "resolves all
conflicts in the evidence and determines

the weight to be accorded the various evidentiary
submissions." Bass v. City of Richmond

Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 557, 563 (1999).
When based on credible evidence,

the commission’s judgments are "‘conclusive and binding
as to all questions of fact.’" Id.

(quoting Code ? 65.2-706(A)); see also Westmoreland Coal Co. v.
Russell, 31 Va. App. 16, 20,

520 S.E.2d 839, 841 (1999). Moreover, "the commission’s
conclusions upon conflicting

inferences, legitimately drawn from proven facts, are equally
binding on appeal." Watkins v.

Halco Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763
(1983). Our deference to the

commission’s fact finding applies "‘even though there
is evidence in the record to support a

contrary finding.’" S.P. Terry Co. v. Rubinos, 38 Va.
App. 624, 632, 567 S.E.2d 584, 588 (2002)

(citation omitted).

In ruling that claimant proved he sustained a brain injury,
which arose out of and in the

course of his employment on July 19, 2000, and was causally
related to his compensable July 19,

2000 injury by accident, the commission found as follows:

The claimant testified that he received blows to the head that

rendered him unconscious. More significantly, the claimant

presented opinions from two treating physicians that supported
his

position. Dr. [Nadia E.] Webb unequivocally agreed that the

claimant suffered a brain injury during the accident.

Dr. [Jonathan] Amy also affirmed that the claimant sustained a

brain injury.

We acknowledge that Dr. Amy clarified that there was "no

injury per se" when asked if there was an identifiable
injury.

However, this distinction does not negate Dr. Amy’s opinion
that a

brain injury resulted from the accident. It is noted that Dr.
Amy

had previously diagnosed the claimant as having suffered a

concussion and that in his September 16, 2002 responses to the

questionnaire forwarded to him by the claimant’s counsel, he

indicated that his treatment was rendered for a brain injury.
The

employer and insurer presented no contrary opinion.

Claimant’s testimony, coupled with the medical records and
opinions of Dr. Amy, the

treating neurologist, and Dr. Webb, the treating
neuropsychologist, constitute credible evidence

to support the commission’s finding. Claimant was diagnosed
with post-concussive syndrome as

a result of a brutal attack perpetrated upon him by a co-worker
on July 19, 2000. In that attack,

the perpetrator ripped off claimant’s ear, hit him in the
temple and the back of the head, caused a

large bump on the front of his head, knocked out some of his
teeth, knocked his jaw out of

alignment, and rendered him unconscious. Claimant underwent
C5-C6 fusion surgery as a result

of the attack and suffers from severe headaches one to two times
per week. Dr. Webb

unequivocally opined that claimant sustained a brain injury as a
result of the July 19, 2000

compensable work-related accident. Although Dr. Amy opined that
there was "no injury per se,"

he responded "yes" and identified "post
concussive syndrome," in response to claimant’s

counsel’s written question as to whether claimant sustained an
identifiable brain injury in his

July 19, 2000 work accident. Dr. Amy also acknowledged that
claimant’s July 19, 2000 brain

injury required medical treatment.

We agree with the commission that employer’s reliance upon
Daniel Constr. Co. v.

Tolley, 24 Va. App. 70, 480 S.E.2d 145 (1997), is misplaced. As
the commission recognized:

Tolley involved a claim for permanent total disability benefits

under ? 65.2-503(C)(3), which allows compensation for an injury

"to the brain which is so severe as to render the employee

permanently unemployable in any gainful employment." In
this

claim, the claimant does not seek permanent total disability

benefits and is not required to prove that any brain injury he
has

suffered is "an irreversible brain injury."

Because there is credible evidence to support the commission’s
finding that claimant

proved he sustained a brain injury as a result of his
compensable July 19, 2000 injury by

accident, we will not disturb that finding on appeal.
Accordingly, we affirm the commission’s

decision.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


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