Fairfax County School Board v. Katherine Berg ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
FAIRFAX COUNTY SCHOOL BOARD
v. Record No. 2527-94-4 MEMORANDUM OPINION *
PER CURIAM
KATHERINE BERG JUNE 6, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael N. Salveson; Hunton & Williams, on brief), for
appellant.
(Kathleen G. Walsh; Ashcraft & Gerel, on brief), for
appellee.
Fairfax County School Board (employer) contends that the
Workers' Compensation Commission (commission) erred in finding
that (1) Katherine Berg (claimant) sustained a change in
condition related to her October 25, 1990 compensable injury by
accident, and (2) she proved she was entitled to an award of
temporary total disability benefits. 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. 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).
Factual findings of the commission will be upheld on appeal if
supported by credible evidence. James v. Capitol Steel Constr.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In holding that claimant's current disability was causally
related to her 1990 compensable injury by accident, the
commission accepted the uncontradicted opinion of the treating
physician, Dr. Bruce Ammerman. During his deposition testimony,
Dr. Ammerman unequivocally stated that the 1990 compensable
accident contributed to claimant's current flare-up of back pain,
and that the 1993 VCR incident resulted in an aggravation of her
underlying disk condition. Although Dr. Ammerman relied
primarily on claimant's subjective complaints of pain, he
testified that he had no reason to believe that she was
exaggerating or fabricating her symptoms. Dr. Ammerman's records
and his testimony provide credible evidence to support the
commission's findings that claimant's current disability was
causally related to the 1990 compensable accident, and that the
VCR incident was not a new accident, but rather an aggravation of
a pre-existing condition. Therefore, the commission did not err
in finding that claimant proved a compensable change in
condition. "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).
Employer argues that Dr. Ammerman's opinion should not have
been accepted by the commission because, in claimant's testimony,
- 2 -
she denied that the VCR incident occurred. Contrary to
employer's contentions, claimant did testify to an incident with
a VCR cart while placing a Barney videotape into the VCR. The
commission reviewed claimant's testimony and resolved any issue
of credibility in favor of claimant. We will not disturb this
finding on appeal. See Goodyear Tire & Rubber Co. v. Pierce, 5
Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). Moreover, even
assuming that the VCR incident did not occur, Dr. Ammerman's
opinion that the 1990 compensable accident was a cause of
claimant's current exacerbation of back pain, constitutes
sufficient credible evidence to support the commission's
decision.
For the reasons stated, we affirm the commission's decision.
Affirmed.
- 3 -