COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1551-02-3 JUDGE ROBERT J. HUMPHREYS
JANUARY 7, 2003
PERCELL W. SALISBURY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christopher R. Hedrick (Mason, Cowardin &
Mason, P.C., on brief), for appellant.
Richard M. Thomas (A. Thomas Lane, Jr., on
brief), for appellee.
Newport News Shipbuilding and Dry Dock Company (employer)
appeals a decision of the Workers' Compensation Commission
awarding Percell W. Salisbury certain medical benefits. Employer
argues that the commission erred in: 1) finding the condition for
which Salisbury sought treatment was related to his compensable
injury; and 2) finding that Salisbury's chiropractor was his
treating physician. We disagree and for the reasons that follow,
affirm the commission's decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
On December 17, 1999, Salisbury sustained an injury to his
lower back while he was working for Newport News Shipbuilding and
Dry Dock Company. Employer accepted the claim as compensable and
on September 8, 2000, the commission entered an award in his favor
for lifetime medical benefits. On June 25, 2001, Salisbury filed
a claim with the commission requesting that employer be ordered to
pay for medical expenses he had incurred during his treatment with
his chiropractor, Dr. Ronald D. Lowman. After a determination on
the record, the commission ordered employer to compensate
Salisbury for the medical expenses at issue, finding that
Salisbury was permitted to seek treatment independently and that
the treatment provided by Dr. Lowman was causally related to the
December 17, 1999 accident.
On appeal, employer argues that the commission erred in
finding that it was responsible for Salisbury's medical treatment
as provided by Dr. Lowman. Employer further contends that the
commission should not have treated "Chiropractor Lowman as the
treating physician merely because [Salisbury] requested a panel of
physicians on February 19, 2001."
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). "A determination
by the [c]ommission upon conflicting facts as to causal
relationship is conclusive and binding on appeal, absent fraud,
when such finding is supported by competent, credible evidence."
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Watkins v. Halco Engineering, Inc., 225 Va. 97, 101, 300 S.E.2d
761, 763 (1983) (citing C.D.S. Services v. Petrock, 218 Va. 1064,
1070, 243 S.E.2d 236, 240 (1978)). "Likewise, the [c]ommission's
conclusions upon conflicting inferences, legitimately drawn from
proven facts, are equally binding on appeal." Id. Furthermore,
"[i]n 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." Moreno v. Moreno, 24 Va. App. 190, 195, 480 S.E.2d
792, 795 (1997).
"Whether the employer is responsible for
medical expenses . . . depends upon: (1)
whether the medical service was causally
related to the industrial injury; (2)
whether such other medical attention was
necessary; and (3) whether the treating
physician made a referral [to the patient]."
WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 231, 494 S.E.2d
147, 152 (1997) (quoting Volvo White Truck Corp. v. Hedge, 1
Va. App. 195, 199, 336 S.E.2d 903, 906 (1985)).
We first note that employer does not contend the treatment
Salisbury received from Dr. Lowman was not medically necessary,
nor does it appeal the commission's finding that Salisbury was
permitted to seek treatment independently. Instead, employer
appeals only the commission's finding that the treatment was
causally related to the December 1999 injury.
Dr. David Tornberg, the physician Salisbury was initially
referred to by employer, diagnosed Salisbury with lumbar sacral
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strain and opined that "[i]t would be the natural history of this
condition, which is an ordinary condition of daily life, to
resolve without further treatment." On January 12, 2000,
Dr. Tornberg provided Salisbury with "[b]ack management
instructions" and advised him to contact "Workers Comp [sic] for
further referral if need be."
Subsequently, Salisbury moved to Staunton, Virginia. There,
he sought treatment with Dr. Ronald D. Lowman, a chiropractor.
Dr. Lowman diagnosed Salisbury with multiple cervical
subluxations, dislocation to lumbar spine, intervertebral disc
disorder without myelopathy, and myofascitis, myositis,
myofibrosis or myalgia. Dr. Lowman subsequently provided
Salisbury with chiropractic therapy through January 3, 2001, on an
average of twice per week. By memorandum dated August 16, 2000,
Dr. Lowman stated that Salisbury's condition was "with medical
certainty caused by the industrial accident that occurred on
December 17, 1999."
The commission found Dr. Lowman's opinion, relating
Salisbury's condition and treatment to the December 1999 injury,
to be credible and relied upon this evidence in determining that
the treatment was causally related to Salisbury's compensable
injury. However, contrary to employer's contention, although the
commission held that Salisbury was permitted to seek treatment
from Dr. Lowman independently, there is no evidence that the
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commission gave the opinion of Dr. Lowman greater weight as
Salisbury's "treating physician."
"We have said in a number of cases that great weight should
be given to the testimony of the attending physician," versus any
subsequent physician. Williams v. Fuqua, 199 Va. 709, 714, 101
S.E.2d 562, 566-67 (1958). We have also said that the opinion of
the attending or "treating" physician, however, "is not binding
upon the [c]ommission." Id. Indeed, we have found that "[t]he
probative weight to be given [such] evidence is for the
[c]ommission to determine, and if it is doubtful and in conflict
with other medical evidence, the [c]ommission is free to adopt
that which is most consistent with reason and justice." Id.
Nevertheless, in the case at bar, there is simply no evidence
that the commission gave the opinion of either physician greater
weight as Salisbury's "treating physician." Instead, the
commission specifically found that Dr. Tornberg never released
Salisbury as "recovered and symptom-free," but suggested that he
contact employer for a further referral if he needed additional
treatment. Thus, the commission found no conflict in the medical
evidence, determining that Dr. Lowman's opinion, relating the
chiropractic treatment to Salisbury's December 1999 injury, was
"uncontradicted" by the medical evidence in the record.
Because credible evidence in the record supports the
commission's determination in this regard, we affirm.
Affirmed.
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