Wampler-Longacre, Inc. v. Kathy L. Custer ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WAMPLER-LONGACRE, INC.
AND
PACIFIC EMPLOYERS INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 1756-97-4 PER CURIAM
DECEMBER 9, 1997
KATHY S. CUSTER
FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION
(Cathleen P. Welsh; Wharton, Aldhizer
& Weaver, on brief), for appellants.
(Kermit L. Racey; Racey & Racey, on brief),
for appellee.
Wampler-Longacre, Inc. and its insurer (hereinafter referred
to as "employer") contend that the Workers' Compensation
Commission erred in finding that Kathy Custer proved (1) that her
post-April 1994 right shoulder and right arm symptoms were
causally related to her 1992 compensable right shoulder injury;
and (2) that she was totally disabled after October 11, 1995,
and, therefore, she did not have a duty to market any residual
capacity. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Causation
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). "Questions 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).
In finding that Custer sustained her burden of proving a
compensable change-in-condition, the commission found as follows:
[Custer's] medical treatment and disability
have been caused, at least in part, by the
1992 compensable injury. Dr. [Galen] Craun
stated on April 21, 1994, that "I believe she
has a cervical neuritis as well as rotator
cuff tendinitis from prior repair." In his
disability statement on May 18, 1994, he
indicated a diagnosis of status post right
shoulder cuff reinjury. In his letter to the
carrier dated June 28, 1994, Dr. Craun wrote,
"I have seen Kathy Custer with complaints of
severe pain in the shoulder, shoulder blade,
and right upper thoracic area. She has been
symptomatic since her rotator cuff repair by
Dr. Edward Chappell. . . . On the same date,
he diagnosed myofascial pain syndrome and
rotator cuff tendinitis, right shoulder. On
September 19, 1994, Dr. Craun wrote: "I can
only conclude that the patient's current
situation stems from her February 10, 1992
condition since she has had as much pain
after her surgery in 1992 as she did before.
In other words, she has continued to be
symptomatic throughout her post-operative
course stemming back to 1992.
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"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, 214 (1991). In its role as fact finder, the
commission was entitled to weigh the medical evidence, to accept
Dr. Craun's opinions, and to reject any contrary medical
opinions. Dr. Craun's opinions, along with Custer's account of
continuing symptoms, constitute credible evidence to support the
commission's decision. "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).
Disability
In ruling that Custer remained totally disabled since July
18, 1994, and had not been released to return to work, the
commission found as follows:
Dr. Craun excused [Custer] from work on [July
18, 1994]. Dr. [Glenn] Deputy took her out
of work on August 9, 1994. Dr. [D.L.] Perry
declared her disabled on August 24, 1994, and
on January 5, 1995, until further notice.
Dr. Perry reported her "still off work" in
February and July, 1996. There has been no
release to return to work, and [Custer's]
testimony is that she remains symptomatic.
The commission was entitled to accept the opinions of
Drs. Craun, Deputy, and Perry. These opinions, coupled with
claimant's continuing symptoms, constitute credible evidence to
support the commission's findings. Therefore, those findings are
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conclusive on appeal. See James v. Capitol Steel Constr. Co., 8
Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "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, 12 Va. App. at 894, 407 S.E.2d at 35.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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