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NEW RIVER CASTINGS CO.,
NOVEMBER 16, 1999
Record No. 1552-99-3
NEW RIVER CASTINGS COMPANY AND LIBERTY MUTUAL
FIRE INSURANCE COMPANY
JAMES A. MAPLE
FROM THE VIRGINIA WORKERS’ COMPENSATION
Present: Judges Elder, Bumgardner and Lemons
MEMORANDUM OPINION* PER CURIAM
(J. Gorman Rosenberger, Jr.; Wilson, Garbee
& Rosenberger, on brief), for appellants.
(Richard M. Thomas; Rider, Thomas, Cleaveland,
Ferris & Eakin, on brief), for appellee.
New River Castings Company and its insurer
(hereinafter referred to as "employer") contend that
the Workers’ Compensation Commission (commission) erred in
finding that James A. Maple proved that his L4-5 disc
herniation (1) was causally related to his compensable June 23,
1997 injury by accident; and (2) did not constitute a new injury
that occurred in October 1997. 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.
"The actual determination of causation is
a factual finding that will not be disturbed on appeal if there
is credible evidence to support the finding." Ingersoll-Rand
Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817
(1989). "In determining whether credible evidence exists,
the appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc.
v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Moreover, 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,
Claimant’s treating neurosurgeon, Dr. Ralph O.
Dunker, Jr., who began treating claimant in July 1997 and twice
performed surgery on claimant’s back, opined that it was
"more likely than not" that claimant’s L4-5 disc
herniation was caused either directly by the June 23, 1997 injury
by accident or constituted "a natural progression or
deterioration" of the condition caused by that injury by
accident. Dr. Raymond V. Harron, a neurosurgeon, who examined
claimant and reviewed his diagnostic studies upon referral from
Dr. Dunker, opined that claimant’s need for surgery to repair his
L4-5 disc defect was related to the June 23, 1997 injury.
Based upon these medical opinions and the
medical records, the commission concluded that claimant proved a
causal relationship between the L4-5 disc herniation and his
compensable June 23, 1997 injury by accident.
The medical records and opinions of Drs. Dunker
and Harron constitute credible evidence to support the
commission’s finding. In its role as fact finder, the commission
was entitled to accept the opinions of Drs. Dunker and Harron and
to reject the contrary opinions of Drs. Robert B. Stephenson and
Anthony G. Bottini. Dr. Stephenson only examined claimant three
times. Dr. Bottini did not examine claimant at all and merely
reviewed his medical records. "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). Where medical evidence
conflicts and the treating physician is positive in his or her
diagnosis, then his or her opinion will generally be afforded
greater weight by the courts. See Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d
570, 572 (1986).
Claimant acknowledged in his testimony that
just before his October 1997 myelogram CT, he rolled from his
back to his left side while on his couch at home and felt a sharp
pain. However, he testified that he had never experienced any
lower back problems before the June 23, 1997 injury by accident.
He also stated that he had experienced pain in his lower back
continuously since June 23, 1997.
The commission concluded that "the
evidence failed to prove that a new injury was the cause of the
claimant’s new disc defect." The medical records, which
documented claimant’s ongoing and continuous back pain before
October 1997, and the opinions of Drs. Dunker and Harron
constitute credible evidence to support the commission’s finding.
Based upon that evidence, the commission could reasonably infer
that the pain claimant felt in October 1997 was merely a part of
the ongoing symptoms he had experienced since the June 23, 1997
accident. "Where reasonable inferences may be drawn from the
evidence in support of the commission’s factual findings, they
will not be disturbed by this Court on appeal." Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695,
For these reasons, we affirm the commission’s
* Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.