Alma R Milbourne-Bush v. Gateway, Inc

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Clements and Senior Judge Bray

ALMA R. MILBOURNE-BUSH
MEMORANDUM OPINION*
v. Record No. 3310-02-1 PER CURIAM
APRIL 15, 2003
GATEWAY, INC. AND
ST. PAUL MERCURY INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Alma R. Milbourne-Bush, pro se, on brief).

(Adam S. Rafal; Vandeventer Black, L.L.P., on
brief), for appellees.

Alma R. Milbourne-Bush (claimant) contends the Workers'

Compensation Commission erred in (1) finding that she failed to

prove that her disability and medical treatment after September

25, 2000 were causally related to her compensable January 2,

2000 injury by accident; and (2) failing to consider all

available medical records. Upon reviewing the record and the

parties' briefs, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.

Rule 5A:27.

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).

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Unless we can say as a matter of law that claimant's evidence

sustained her burden of proof, the commission's findings are

binding and conclusive upon us. See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

In denying compensation and medical benefits to claimant

after September 25, 2000, the commission found as follows:

The claimant's treatment providers after
September 25, 2000, have been unable to
determine a cause for the claimant's
condition. Dr. [Marc] Garfield opined that
her condition was "idiopathic." Dr. [Frank]
Mercer noted that the claimant's problems
stemmed from "nerve damage," but there were
no treatment records to support this
opinion. Moreover, Dr. [Karen] Barr, who
treated the claimant at the same time as
Dr. Mercer, clearly opined that the claimant
did not suffer from nerve damage, based on
thorough, detailed testing. Dr. [Sidney]
Loxley noted that he was unsure as to the
etiology of the claimant's condition, but
doubted it was physiologic. Dr. Loxley did
opine that the claimant had a "stretching
injury of the nerve" but provided no
explanation or basis for this opinion.
Dr. [Robert] Snyder suspected the condition
might be related to the claimant's diabetes.

Despite certain inconsistencies noted
in the claimant's presenting symptoms
throughout her treatment, the evidence in
general established decreased sensation in
the claimant's right foot. The claimant was
required to show that her condition was the
result of the accident. The evidence that
tended to show this connection was the
uninterrupted history of symptoms and
treatment since the accident. There was no
persuasive medical opinion, however, as to
the cause of the claimant's numbness
problem, which developed several months
after the accident. We find that a
preponderance of the evidence did not
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 establish that the claimant's right-foot
numbness was the result of the January 2000
accident.

"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). As fact finder, the commission weighed

the medical evidence, and concluded that it was not sufficient

to prove by a preponderance that claimant's right foot numbness

was the result of her January 2, 2002 compensable injury by

accident. Drs. Garfield, Barr, Loxley and Snyder did not

causally relate claimant's right foot numbness to her

compensable accident. Dr. Mercer's opinion that claimant's

right foot problem stemmed from nerve damage was not supported

by any treatment notes. Thus, the commission was entitled to

conclude that Dr. Mercer's opinion was of little probative

value.

In light of the lack of any persuasive medical evidence

causally relating claimant's symptoms after September 25, 2000

to her compensable January 2, 2000 injury by accident, we cannot

find as a matter of law that claimant's evidence sustained her

burden of proof.

We find no merit in claimant's argument that the commission

did not review all available medical evidence in the record. To

the contrary, the commission's opinion reflects a thorough and

complete review of the medical records of numerous physicians.
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We also note that we did not consider any medical evidence that

was not properly before the commission when it rendered its

decision.

For these reasons, we affirm the commission's decision.

Affirmed.

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