COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
WELLMONT LONESOME PINE HOSPITAL AND
RECIPROCAL OF AMERICA
MEMORANDUM OPINION*
v. Record No. 0665-03-3 PER CURIAM
AUGUST 12, 2003
CONNIE JO CANTOR
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ramesh Murthy; Lisa Frisina Clement;
PennStuart, on brief), for appellants.
(D. Allison Mullins; Lee & Phipps, P.C., on
brief), for appellee.
Wellmont Lonesome Pine Hospital and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in finding that (1) the doctrine
of res judicata did not bar Connie Jo Cantor's (claimant) March
11, 2002 change-in-condition application related to her left
shoulder condition; and (2) claimant proved that her left
shoulder condition was causally related to her compensable June
18, 2001 injury by accident, entitling her to benefits beginning
April 15, 2002 and continuing. Upon reviewing the record and
the parties' briefs, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
Res Judicata
On appeal, employer argues that the doctrine of res
judicata barred the commission from considering claimant's March
11, 2002 change-in-condition application. Employer contends
claimant previously presented a claim for a left shoulder injury
to Deputy Commissioner Burchett, which was the subject of his
January 24, 2002 decision from which claimant did not appeal.
Employer did not raise the doctrine of res judicata as a
bar to claimant's March 11, 2002 application before the
commission. Accordingly, we will not consider it for the first
time on appeal. See Rule 5A:18.
Causation
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).
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The June 18, 2001 emergency room report indicates that
claimant complained of a "neck, shoulder injury." On his June
18, 2001 Attending Physician's Report, Dr. W. Zahnke, the
emergency room physician, recorded that claimant "was pushing a
box on top shelf in stock room – pulled off piece of tape from
box [and] twisted [left] shoulder/neck."
Claimant began treatment with Dr. Ken Smith, a
neurosurgeon, on August 13, 2001. At that time, she complained
of left upper extremity numbness and tingling. Those complaints
continued throughout Dr. Smith's treatment. Dr. Smith
eventually referred claimant to Dr. S.K. Kotay, an orthopedist,
for her left shoulder complaints.
Dr. Kotay began treating claimant on March 11, 2002.
Dr. Kotay recorded a history of left shoulder pain with an onset
of June 2001 when claimant was lifting some heavy boxes over her
head and her shoulder popped, causing severe pain. Dr. Kotay
indicated that claimant subsequently had some numbness in her
hand and pain radiating down her arm.
In a March 13, 2002 Attending Physician's Report, Dr. Kotay
indicated that claimant's left shoulder pain was due to an
incident on June 18, 2001, when claimant was moving boxes above
her head onto a wire cart and felt pain in her neck and left
arm. As of April 15, 2002, Dr. Kotay excused claimant from all
work at least until her next appointment on May 13, 2002.
Dr. Kotay continued to treat claimant for left shoulder pain
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with cortisone injections and issued another disability slip on
May 30, 2002, stating "no work until return appointment of
7/8/02." No evidence showed that Dr. Kotay ever subsequently
released claimant to return to her pre-injury employment.
In finding that claimant proved that her left shoulder
condition and disability commencing April 15, 2002 were causally
related to her June 18, 2001 compensable injury by accident, the
commission accepted Dr. Kotay's opinion, resolving any
inconsistencies in his medical records in favor of claimant.
Dr. Kotay's medical records and opinions, coupled with the
records of Dr. Smith and Dr. Zahnke, provide credible evidence
from which the commission could reasonably infer that claimant's
left shoulder complaints were causally related to her
compensable June 18, 2001 injury by accident and that she was
totally disabled beginning April 15, 2002 as a result of that
accident. "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). As fact finder, the commission was entitled to
weigh the medical evidence, to accept Dr. Kotay's opinion, and
to reject the contrary opinions of Drs. William A. McIlwain and
Jim C. Brasfield, who examined claimant upon employer's request.
"The fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
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commission's finding." Wagner Enters., Inc. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For these reasons, we affirm the commission's decision.
Affirmed.
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