Alltel Communications, etc. v. Teresa E. Holzner ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
ALLTEL COMMUNICATIONS, INC. AND
CINCINNATI INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1798-01-1 PER CURIAM
DECEMBER 11, 2001
TERESA E. HOLZNER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Calvin W. Fowler, Jr.; James J. Reid;
Williams, Mullen, Clark & Dobbins, on
briefs), for appellants.
(T. Gregory Evans; Joynes & Gaidies Law
Group, P.C., on brief), for appellee.
Alltel Communications, Inc. and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that Teresa E. Holzner (claimant)
proved that her left wrist problems were a compensable
consequence of her February 27, 1999 right wrist 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. Rule 5A:27. 1
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
We have considered employer's Motion for Sanctions or in
the Alternative For an Extension of Time to Respond to
Claimant's Brief. We deny the motion for sanctions and grant
the motion for an extension of time to respond to claimant's
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
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 ruling that claimant proved that her left wrist problems
were caused by the November 30, 1999 Functional Capacities
Evaluation ("FCE"), which was necessitated by claimant's
compensable February 27, 1999 right wrist injury, the commission
found as follows:
The December 4, 1999, emergency room report
noted that the claimant had experienced
left-wrist pain since November 30, the date
of the FCE. Dr. [Robert] Rutland's opinion
that the left-wrist injury was not
"work-related" appeared to be more of a
statement concerning how the injury actually
occurred.
The claimant's testimony concerning how
the injury actually occurred was that she
hurt it performing a lifting exercise, where
a box slipped and she caught it before it
fell. [Cynthia] Free's testimony was that
she did not recall such an incident and that
she did not note any left-wrist problems.
The FCE results, however, indicated that the
lifting exercise was terminated by the
claimant because of "complaints of fatigue,
excessive discomfort, or inability to
complete the required number of movements
brief. We have considered employer's reply brief filed with
this Court on November 8, 2001 in rendering our decision.
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during the testing interval (cycle)."
Moreover, Free recalled the claimant
informing her between one and two weeks
after the FCE that she was "sore," although
she could not recall what particularly was
sore. Free also described the FCE as "very
strenuous."
The medical records also corroborated
the claimant's testimony. The December 4,
1999, emergency room record specifically
corroborated that the claimant injured her
left wrist on November 30, 1999. The
claimant had not reported any pain
complaints in her left wrist before the
November 30, 1999, FCE. We believe that
although Free's testimony failed to
corroborate the claimant's testimony, the
actual FCE results and subsequent medical
records did, and that the claimant satisfied
her burden of proof.
"When a primary injury under the Workmen's Compensation Act
is shown to have arisen out of the course of the employment,
every natural consequence that flows from that injury is
compensable if it is a direct and natural result of a primary
injury." Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97, 99
(1977). "In other words, where a causal connection between the
initial compensable injury and the subsequent injury is
established . . . the subsequent injury is treated as if it
occurred in the course of and arising out of the employee's
employment." Bartholow Drywall Co. v. Hill, 12 Va. App. 790,
794, 407 S.E.2d 1, 3 (1991) (citations omitted).
Credible evidence, including claimant's testimony, the
December 4, 1999 emergency room report, and the FCE results,
supports the commission's finding that claimant's left wrist
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problems were a compensable consequence of her February 27, 1999
right wrist injury. As fact finder, the commission was entitled
to give little probative weight to Dr. Rutland's statement by
inferring that it focused upon how the injury occurred rather
than its causation. "Medical 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). Moreover, "[i]n
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).
Because credible evidence supports the commission's finding
that the FCE, which was necessitated by the compensable right
wrist injury, caused claimant's left wrist problems, we will not
disturb that finding on appeal. Accordingly, we affirm the
commission's decision.
Affirmed.
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