Huss, Inc. and Fireman's Fund Ins. Co. v. Bohannan ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
HUSS, INC. AND
FIREMAN'S FUND INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0930-01-1 PER CURIAM
AUGUST 14, 2001
RICHARD EUGENE BOHANNAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Stephen R. Jackson; Willcox & Savage, P.C.,
on brief), for appellants.
(David A. Buzard; Bennett & Zydron, P.C., on
brief), for appellee.
Huss, Inc. and its insurer (hereinafter referred to as
"employer") contend that the Workers' Compensation Commission
erred in finding that Richard Eugene Bohannan (claimant) proved
that his current disability is causally related to his
compensable January 13, 2000 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, 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).
Because [causation] is a factual
determination, "[t]he testimony of a
claimant may also be considered in
determining causation, especially where the
medical testimony is inconclusive." . . .
[W]here "the [medical] reports reflect only
the results of claimant's physical
examination and do not purport to establish
the cause or causes of [his] injury[,] . . .
the commission was free to credit claimant's
testimony at the hearing as a basis for its
finding of causation."
Strictly Stumps, Inc. v. Enoch, 33 Va. App. 792, 795, 537 S.E.2d
19, 20-21 (2000) (quoting Dollar General Store v. Cridlin, 22
Va. App. 171, 176-77, 468 S.E.2d 152, 154-55 (1996)).
The medical evidence and claimant's testimony support the
commission's conclusion that his current disability is causally
related to his compensable January 13, 2000 injury by accident.
In finding that claimant proved his current back disability is
causally related to his compensable January 13, 2000 injury by
accident, the commission recognized that "the record does not
include a definitive medical statement regarding causation of
the claimant's disability." Thus, the commission, as it is
permitted to do, considered claimant's testimony regarding
causation. See id. In doing so, the commission made the
following findings:
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The claimant's testimony regarding the
mechanism of injury is consistent with his
medical records. The medical records
reflect that he had a preexisting diagnosis
of osteoarthritis of the lumbar spine. On
May 13, 1998, the claimant received a 10
percent VA disability rating for
"characteristic pain" which he indicated was
a one or two on a scale of one to ten, with
ten being severe. There is no evidence he
had radiculopathy or muscle spasms in his
back prior to January 13, 2000. The
claimant described a specific incident that
occurred at a specific point in time when he
injured himself. He consistently reported
that he felt a pop in his back while moving
a tarp from the flatbed of his truck. The
February 2000, MRI scan showed that in
addition to preexisting spondylolisthesis,
the claimant also had a herniated nucleus
pulposus at L5-S1. This diagnosis is
entirely consistent with his current
symptoms, which began after he felt the pop
in his back on January 13, 2000. There is
no evidence that the claimant had a
herniated nucleus pulposus prior to January
13, 2000.
* * * * * * *
It is undisputed that the claimant had
preexisting osteoarthritis. He said that
the last time he recalled receiving
treatment for his back was almost a year
prior to the current injury and that the
problem resolved after several days. . . .
It appears that [claimant] was largely
symptom-free prior to January 13, 2000, and
that after the work-related injury, he had a
significant increase in back pain coupled
with right leg radiculopathy, which had not
been medically documented prior to that
time.
Claimant's testimony and the uncontradicted medical records
constituted credible evidence sufficient to prove that
claimant's current disability is causally related to his
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compensable January 13, 2000 injury by accident. As fact
finder, the commission was entitled to discount Dr. John A.
Williamson's statement on March 2, 2000, that "workers' comp may
cause a problem because of a preexistence of the spondylosis and
the degenerative disc disease. . . ." Dr. Williamson's
statement did not constitute an opinion regarding the causation
of claimant's current disability.
The medical evidence and the reasonable
inferences that flow from this evidence
support [the commission's] findings.
"Medical evidence is not necessarily
conclusive, but is subject to the
commission's consideration and weighing."
Furthermore, on appeal, we "[do] not retry
the facts, reweigh the preponderance of the
evidence, or make [our] own determination of
the credibility of the witnesses."
Marriott Int'l, Inc. v. Carter, 34 Va. App. 209, 215-16, 539
S.E.2d 738, 741 (2001) (citations omitted).
"The record in this case does not establish that the
medical issue was so complex that the commission made findings
in an area that could only be properly decided by medical
experts. Because the testimony and medical evidence are
uncontradicted and credible evidence supports the commission's
finding, we affirm." Strictly Stumps, 33 Va. App. at 796, 537
S.E.2d at 21.
Affirmed.
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