Schmidt Baking Company v. Albert W. Edwards ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
SCHMIDT BAKING COMPANY, INCORPORATED
AND
LUMBERMEN'S MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 2202-99-2 PER CURIAM
JANUARY 27, 2000
ALBERT W. EDWARDS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Andrew R. Blair, on briefs), for appellants.
(Gregory O. Harbison; Geoffrey R. McDonald &
Associates, P.C., on brief), for appellee.
Schmidt Baking Company, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Albert W.
Edwards's left knee replacement surgery was causally related to
his May 28, 1996 compensable injury by accident. 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). "The
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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 holding employer responsible for Edwards's left knee
replacement surgery, the commission found as follows:
At the March 1999 hearing, [Edwards]
testified that prior to the accident of
February 1996 he had no problems with his
left knee. There is no contrary evidence of
record.
* * * * * * *
Dr. [Michael B.] O'Brien . . . states in his
December 1998 letter that the May 1996
injury "primarily exacerbated [Edwards's]
underlying DJD [degenerative joint
disease]." This exacerbation had not
resolved and, in fact, now requires knee
replacement surgery. Dr. O'Brien's
statement is uncontroverted. The Commission
has no reason to disagree with the treating
physician's assessment of [Edwards's]
condition.
Dr. O'Brien's December 1998 letter, coupled with Edwards's
testimony, provides credible evidence to support the
commission's findings. Therefore, those findings are binding
and conclusive upon us on appeal. "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
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(1991). Moreover, "'the employer takes the employee as he is
and if the employee is suffering some physical infirmity, which
is aggravated by an industrial accident, the employer is
responsible for the end result of such accident.'" McDaniel v.
Colonial Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225,
228 (1986) (citation omitted). Based upon Dr. O'Brien's letter
and Edwards's testimony, the commission, as fact finder, was
entitled to infer that Edwards's May 28, 1996 compensable
accident aggravated his underlying DJD, thereby causing the need
for the left knee replacement surgery. "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, 698 (1988).
For these reasons, we affirm the commission's decision.
Affirmed.
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