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KERNIGAN v. RYDER DEDICATED LOGISTICS AND RYDER TRUCK RENTAL, INC.


KERNIGAN v. RYDER DEDICATED
LOGISTICS AND RYDER TRUCK RENTAL, INC.

(unpublished)


SEPTEMBER 15, 1998
Record No. 1102-98-3

JACK JERNIGAN

MEMORANDUM OPINION [1]
PER CURIAM

v.

RYDER DEDICATED LOGISTICS AND
RYDER TRUCK RENTAL, INC.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Elder, Bumgardner and Lemons

(Rhonda L. Overstreet; Lumsden, Overstreet & Hansen, on
brief), for appellant.

(William H. Fralin, Jr.; Jolly, Place, Fralin &
Prillaman, on brief), for appellees.

Jack Jernigan ("claimant") contends that the Workers’
Compensation Commission ("commission") erred in finding
that he failed to prove that his ongoing right knee symptoms and
post?May 13, 1997 disability were causally related to his
compensable July 16, 1994 injury by accident. Upon reviewing the
record and the briefs of the parties, we find 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).
"General principles of workman’s compensation law provide
that ‘[i]n an application for review of any 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.’" Great Atl. & Pac. Tea Co. v. Bateman,
4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot
Freight Carriers, Inc. v. Reeves
, 1 Va. App. 435, 438?39,
339 S.E.2d 570, 572 (1986)). Unless we can say as a matter of law
that claimant’s evidence sustained his 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).
In denying claimant’s application, the commission found as
follows:
Based upon this record, the Deputy Commissioner concluded that
the claimant had failed to prove that his current disability and
medical treatment are causally related to the July 1994
industrial accident. We agree. Dr. [Bertram] Spetzler relates the
claimant’s current condition to his underlying osteoarthritis,
and has stated that the claimant’s current problems really could
not be considered work related after the standard healing period.
We find that the claimant has failed to prove that his current
knee condition is causally related to the traumatic aggravation
which occurred more than three years ago, in 1994.
Based upon Dr. Spetzler’s October 3, 1997 letter report and his
related medical records, which support the commission’s findings,
we cannot find as a matter of law that claimant’s evidence
sustained his burden of proof. Accordingly, we affirm the
commission’s decision.[2]
Affirmed.

FOOTNOTES:

[1]Pursuant
to Code ‘ 17?116.010 this opinion is not designated for
publication.
[2]Based
upon our holding on the causation issue, we need not address the
marketing issue.

 

 

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