COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
ROBERT DOUGLAS CLARK
MEMORANDUM OPINION*
v. Record No. 1413-02-4 PER CURIAM
NOVEMBER 5, 2002
FLUOR DANIELS/FLUOR CORPORATION AND
UNITED STATES FIDELITY AND GUARANTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark S. Thrash, on brief), for appellant.
(Gary L. Denton; The Law Offices of Gary L.
Denton, on brief), for appellees.
Robert Douglas Clark (claimant) contends the Workers'
Compensation Commission erred in finding that his cervical and
left knee conditions, and subsequent need for surgery, were not
causally related to his compensable May 2, 1989 back injury.
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).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission's findings are
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission held that claimant failed to carry his
burden of proving that the physical therapy prescribed for his
compensable back condition caused his cervical and left knee
problems and subsequent surgery. In so ruling, the commission
found as follows:
[Claimant] underwent considerable physical
therapy for his lumbar region beginning in
January 1999, but . . . he did not
specifically describe any particular
exercise or therapy session that caused the
onset of his symptoms. For example, on May
10, 1999, the claimant reported an increase
in his cervical symptoms and that the
swelling in his left knee had worsened.
Although he partially attributed these
conditions to the physical therapy session,
he made no direct or specific attribution,
and our reading of the note indicates that
the therapist felt that the conditions were
preexisting.
[C]laimant did not mention any knee
pain during the course of the emergency
medical treatment he received on June 29,
1999, and described only neck and arm pain
of one to two months' duration. . . .
[C]laimant reported [to Dr. Tusher U. Gajjar
on October 12, 1999] that "his neck pain
started spontaneously with no inciting
trauma. . . ." and that the physical
therapy exercises exacerbated his low back
pain (without any mention of the cervical
pain). He apparently did not report any
knee pain.
. . . [Dr. Harold Young's] reports
indicate that he diagnosed degenerative disc
disease, and he never indicated that the
degenerative condition was related to trauma
or any specific event. Although Dr.
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[Hallett H.] Mathew's March 21, 2001, letter
supports the claimant's causation argument,
the notes associated with his treatment in
1999 do not. On June 14, 1999, Dr. Mathews
noted the claimant's neck, shoulder, and
left knee symptoms "because of his overuse
syndrome. . . ." but did not specifically
relate his condition to the physical
therapy. Furthermore, there is an
inconsistency in the claimant's apparent
reliance on the May 10, 1999, physical
therapy note to document his first complaint
of symptoms and Dr. Mathews' statement that
the exacerbation occurred in June 1999.
Lastly, we find no error in the Deputy
Commissioner's characterization of the
claimant's physical therapy as "gentle." We
note, in particular, as did the Deputy
Commissioner, that the claimant's knee
problems resulted in the extensive knee
reconstruction surgery performed by
Dr. [Frank C.] McCue, [III]. We are not
persuaded that [claimant's] physical
therapy, however it is characterized, would
result in such extensive damage to his knee.
The commission's factual findings are amply supported by
the record. As fact finder, the commission was entitled to
weigh the medical evidence. See Hungerford Mechanical Corp. v.
Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). It
did so, and gave little weight to Dr. Mathew's March 21, 2001
letter, in light of the inconsistencies between that letter,
Dr. Mathews' office notes, and the other medical records. In
light of those inconsistencies, coupled with claimant's
inability to attribute his symptoms to any specific exercise or
therapy, claimant's comments to Dr. Gajjar, and the lack of any
definitive opinion regarding causation in the medical records of
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Drs. Young and McCue, we cannot find as a matter of law that
claimant's evidence sustained his burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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