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RELIANCE INSURANCE COMPANY v. WHITT



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RELIANCE INSURANCE COMPANY

v.

WHITT


SEPTEMBER 12, 2000

Record No. 1108-00-3

Present: Chief Judge Fitzpatrick, Judges Bray
and Annunziata

SOUTHFORK TRUCKING, INC. AND

RELIANCE INSURANCE COMPANY

v.

ALBERT WHITT

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION


MEMORANDUM OPINION[1] PER CURIAM

(Robert M. McAdam; Jones & Glenn, PLC, on
brief), for appellants.

(Paul L. Phipps; D. Allison Mullins; Lee &
Phipps, P.C., on brief), for appellee.

Southfork Trucking, Inc. and its insurer
(hereinafter referred to as "employer") contend that
the Workers’ Compensation Commission erred in finding that Albert
Whitt (claimant) proved that he suffered a sudden mechanical
change in his body as a result of his October 10, 1998
work-related accident, which caused a material aggravation of his
pre-existing disc herniation at the L5-S1 level and his
subsequent disability and need for surgery. 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). Factual findings made by the commission
will be upheld on appeal if 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 concluded that "claimant
sustained a material aggravation of his pre-existing lumbar
condition on October 10, 1998 [and] . . . that this
incident caused a mechanical change in the body, namely a change
in the location and severity of the pre-existing disc herniation
at the L5-S1 level." In so ruling, the commission found as
follows:

The medical record clearly reflects previous
injury to the lower back, necessitating two surgeries to the
lumbar region. In January 1998, per Dr. [Paul C.] Peterson’s
testimony, the claimant was diagnosed with a new injury to the
lumbar spine. Diagnostic studies at that time revealed a bulging
disc at the L4-L5 level as well as a left paramedian disc
herniation at the L5-S1 level. The claimant was able to perform
his pre-injury work duties without difficulty, despite continuing
complaints of pain and despite Dr. Peterson’s recommendation that
the claimant undergo surgery. After October 10, 1998, the
claimant was unable to perform his pre-injury work, and
complained of an exacerbation of left leg pain.

. . . Dr. Peterson initially
testified that one basis for his opinion regarding the issue of
causation was the fact that the claimant had not previously
complained of left leg pain. The medical record contradicts this
assertion, and Dr. Peterson corrected his error later in the
deposition testimony. Diagnostic studies performed after October
10, 1998, showed a disc herniation at the L5-S1 level which was
more centrally located, leading Dr. Peterson to conclude that the
claimant sustained an aggravation of his pre-existing condition.
While it is clear that the treating physician had previously
recommended surgical intervention, it appears from his deposition
testimony that the absolute need for surgery was accelerated by
the October 10, 1998, work injury.

The commission’s findings are supported by
credible evidence, including claimant’s testimony and Dr.
Peterson’s medical reports and deposition testimony. The
commission as fact finder was entitled to accept Dr. Peterson’s
opinions and to reject any contrary medical opinions.
Furthermore, "[m]edical 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). Based upon Dr.
Peterson’s reports and deposition testimony, the commission could
reasonably infer that the October 10, 1998 accident caused a
sudden mechanical change in claimant’s body, that is, a material
aggravation of his pre-existing disc herniation, which resulted
in disability and accelerated the need for surgery.

For these reasons, we affirm the commission’s
decision.

Affirmed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for
publication.

 

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