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QUINTEROS v. ABSOLUTE NURSING CARE OF VIRGINIA, INC., et al.



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QUINTEROS

v.

ABSOLUTE NURSING CARE OF
VIRGINIA, INC., et al.


FEBRUARY 6, 2001

Record No. 2435-00-4

Present: Chief Judge Fitzpatrick, Judge
Bumgardner and

Senior Judge Hodges

ENEIDA S. QUINTEROS

v.

ABSOLUTE NURSING CARE OF VIRGINIA, INC. AND

AIU INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION


MEMORANDUM OPINION* PER CURIAM

(Eneida S. Quinteros, pro se, on
brief).

(Mary Beth Nash; Monica L. Taylor; Gentry Locke
Rakes & Moore, on brief), for appellees.

Eneida S. Quinteros (claimant) contends that
the Workers’ Compensation Commission erred in finding that she
failed to prove that either she sustained a back injury at the
time of her compensable October 23, 1997 left knee injury or that
her back condition was a compensable consequence of her left knee
injury. 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). "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 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).

Injury by Accident

In ruling that claimant failed to establish
that she suffered an injury to her back on October 23, 1997, the
commission found as follows:

While we are cognizant of the claimant’s
testimony that she began to feel pain in her back one to one and
one-half weeks after the accident and so reported this to Dr.
[Edward] Alexander, we find nothing in his medical reports
referring to any back problem until February 12, 1998, some four
months after the accident. In his February 15, 1999, letter, Dr.
Alexander confirmed no direct connection between the claimant’s
back pain and injury. In addition, we note the claimant, who was
represented by counsel, neither in her initial claim nor in the
Memorandum of Agreement noted any injury other than to her left
knee. In view of this evidence and the fact that the claimant
apparently underwent prior back surgery, we cannot find that she
established an injury by accident to her back on October 23,
1997.

In light of the lack of any history of a back
injury until February 1998 and Dr. Alexander’s opinion that there
is no causal connection between claimant’s compensable knee
injury and her back condition, the commission, as fact finder,
was entitled to reject claimant’s hearing testimony and to
conclude that she failed to establish a causal connection between
her back condition and her compensable knee injury.

Based upon this record, we cannot find as a
matter of law that claimant’s evidence sustained her burden of
proof.

Compensable Consequence

In ruling that the evidence failed to establish
that claimant’s back problem was the result of a compensable
consequence from her left knee injury, the commission accepted
the February 15, 1999 opinion of Dr. Alexander. On that date, Dr.
Alexander opined as follows:

Theoretically one could possibly make a tenuous
connection between the development of a limp and the development
of an L5 radiculopathy which showed up on the EMG but this as
mentioned would be quite tenuous. I can see no direct connection
between the incident of her injury and what we see now, though
there is no doubt that she has a real problem.

As fact finder, the commission was entitled to
accept Dr. Alexander’s February 15, 1999 unequivocal opinion, and
to give little probative weight to his earlier response to a
request from claimant and his May 7, 1998 statement. In addition,
the commission was entitled to accept Dr. Alexander’s opinion and
to reject the contrary September 30, 1998 opinion of Dr. Neil
Speigel. Dr. Speigel opined that claimant had developed back and
leg pain because of the abnormality with her foot drop and
chronic pain. The commission found Dr. Speigel’s opinion to be
vague and inconsistent with the medical records, which reflected
that claimant experienced back pain before the foot drop.
"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).

Based upon Dr. Alexander’s February 15, 1999
opinion and the record taken as a whole, we cannot find as a
matter of law that claimant’s evidence sustained her burden of
proving that her back condition was a compensable consequence of
her left knee injury.

For these reasons, we affirm the commission’s
decision.
[1]

Affirmed.

FOOTNOTES:

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

Appellees have filed a motion to redact
appendix filed by appellant. We deny the motion.

 

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