Quebecor Printing, Inc. v. Lesa W. Simms ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
QUEBECOR PRINTING, INC. AND
AMERICAN PROTECTION INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 3140-01-2 PER CURIAM
APRIL 9, 2002
LESA W. SIMMS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy III; Patsy L. Mundy; Sands
Anderson Marks & Miller, on briefs), for
appellants.
(Thomas J. Schilling; Law Offices of Thomas
J. Schilling, on brief), for appellee.
Quebecor Printing, Inc. and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in (1) finding that Lesa W. Simms (claimant)
proved that her right knee condition constituted a compensable
consequence of her April 29, 1999 compensable left knee injury;
(2) awarding benefits for claimant's right knee condition which
resulted from a compensable consequence, a gait disturbance, of
the left knee; and (3) relying upon medical histories alone to
establish the cause of claimant's right knee condition. Upon
reviewing the record and the parties' briefs, we conclude that
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
I.
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). "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). Furthermore, "[q]uestions
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).
Claimant's treating orthopedic surgeon, Dr. Kenneth Zaslav,
opined on December 8, 2000, as follows:
Regarding your second question, I do believe
that the current medical treatment to
[claimant's] right knee is related to an
industrial accident injury on 4/29/99 in the
following way:
Ms. Simms had to rely on her right knee more
during the period of time when her left knee
was being treated and during her post op
course, and I believe this exacerbated an
underlying patellar malalignment, causing a
worsening of symptoms.
Dr. Herman Nachman, who reviewed claimant's medical records
for employer, opined in a letter dated April 10, 2001 that
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claimant's right knee problem was not causally related to the
April 29, 1999 compensable left knee injury.
As fact finder, the commission was entitled to weigh the
medical evidence. It did so, and accepted the opinion of the
treating physician, Dr. Zaslav, while rejecting the opinion of
Dr. Nachman, who had never examined or treated claimant. The
commission concluded, "the weight of the evidence supports
claimant's contention that her right knee problems are a
compensable consequence of her April 29, 1999 left knee injury."
"'[W]hen an attending physician is positive in his diagnosis
. . . , great weight will be given by the courts to his
opinion.'" Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 439, 339 S.E.2d 570, 572 (1986) (citations omitted).
Dr. Zaslav's medical records and opinions constitute
credible evidence to support the commission's finding. "The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
II. and III.
On appeal, employer relies upon Amoco Foam Prods. Co. v.
Johnson, 257 Va. 29, 510 S.E.2d 443 (1999), to argue that a
compensable consequence of a compensable consequence is not an
awardable condition. In doing so, employer contends claimant's
right knee condition is not compensable because it resulted from
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a compensable consequence of a gait disturbance, which was a
compensable consequence of claimant's initial left knee injury.
Employer also argues that the commission erred in relying upon
the medical histories claimant supplied to her physicians to
provide a credible account of how her right knee condition
occurred, where claimant did not testify. Employer did not
raise either of these arguments before the deputy commissioner
or in its written statement filed on review before the full
commission.
Any theory of recovery or argument not raised before the
commission will not be considered by this Court for the first
time on appeal. See Rule 5A:18; see also Kendrick v. Nationwide
Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
Accordingly, we will not consider these arguments for the first
time on appeal. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
For these reasons, we affirm the commission's decision.
Affirmed.
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