COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
ROY TRAVIS BLANKENSHIP
MEMORANDUM OPINION*
v. Record No. 0249-02-3 PER CURIAM
JULY 2, 2002
CSI/ARCHSTONE COMMUNITIES TRUST AND
ZURICH AMERICAN INSURANCE COMPANY
OF ILLINOIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roy Travis Blankenship, pro se, on briefs).
(Linda D. Frith; E. Albion Armfield; Frith,
Anderson & Peake, P.C., on brief), for
appellees.
Roy Travis Blankenship (claimant) contends the Workers'
Compensation Commission erred in (1) finding he failed to prove
his low back condition and headaches were causally related to
his compensable April 6, 2000 injury by accident; and
(2) refusing to consider additional evidence filed with
claimant's "Request for Review," as after-discovered evidence.
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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. 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).
Unless we can say as a matter of law that claimant's evidence
sustained his 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 claimant's application, the commission deferred
to the deputy commissioner's finding that claimant's testimony
that the April 6, 2000 accident caused a low back injury was not
credible. This credibility determination was based upon
claimant's inconsistent descriptions of the onset of his low
back pain and claimant's supervisor's testimony that claimant
did not report low back pain to him after the April 6, 2000
accident. It is well settled that credibility determinations
are within the fact finder's exclusive purview. Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). Thus, we will not disturb that finding on appeal.
In reviewing the medical evidence regarding the cause of
claimant's low back pain, the commission found as follows:
[T]he initial medical records clearly
illustrate that the claimant did not suffer
low back pain in relation to the compensable
injury. Dr. [Earl W.] Watts[, Jr.]
repeatedly noted the claimant's precise
complaints of upper back pain between the
shoulder blades. He routinely diagnosed a
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thoracic back strain and made no mention of
the low back. Dr. Watts performed no
diagnostic tests on the lumbar area. The
contemporaneous physical therapy notes
detail a condition involving the left
parascapular and trapezius areas. There is
no opinion from Dr. Watts causally
connecting the low back pain to the
compensable injury.
During Dr. [Louis J.] Castern's first
examination, he also noted upper thoracic
parascapular pain and specifically diagnosed
a left thoracic strain. On April 28, 2000,
the claimant complained of low back pain.
Dr. Castern advised that these symptoms were
"[i]n addition to his thoracic symptoms" and
indicated that they were new: "[The
claimant] now also has been experiencing
intermittent low back pain symptoms."
(Emphasis added). Dr. Castern never related
the low back pain to the compensable
accident.
Similarly, when Dr. [Bertram W.]
Spetzler began treatment in June 2000, he
focused on an upper back injury. He first
examined the low back on August 4, 2000,
after the claimant complained of "pain with
lifting boxes." On May 14, 2001, Dr.
Spetzler confirmed his belief that the low
back pain was not related to the industrial
accident. Lastly, Dr. [Darrell F.] Powledge
concluded that the claimant's low back
complaints were not causally connected to
the work-related accident.
We are not persuaded by Dr. [Alvis T.]
Perry's assessment, when compared to the
numerous other medical opinions.
Additionally, he did not begin to treat the
claimant until many months after the injury
by accident.
Regardless, we note that the evidence
does not persuasively establish that the
claimant's low back condition rendered him
totally disabled. Instead, several
physicians found him to be capable of
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returning to work. Medical reports and
diagnostic studies do not show objective
findings of an incapacitating low back
condition. Even if the claimant's headaches
were disabling, this condition was related
to the epidural steroid injections, which
were performed for the non-compensable low
back pain.
(Citation omitted.)
"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). The medical records of Drs. Watts,
Castern, Spetzler, and Powledge amply support the commission's
factual findings. As fact finder, the commission weighed the
medical evidence, accepted the opinions of Drs. Spetzler and
Powledge, and rejected Dr. Perry's contrary opinion. "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 light of that lack of any opinion regarding causation
from Drs. Watts and Castern and the opinions of Drs. Spetzler
and Powledge that claimant's low back condition was not causally
related to his compensable April 6, 2000 injury by accident, we
cannot find as a matter of law that claimant's evidence
sustained his burden of proof. 1
1
We note that claimant also did not meet his burden of
proving that his headaches were causally related to his
compensable injury by accident because the headaches were
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II. After-discovered Evidence
Claimant contends the commission erred in refusing to
consider the April 10, 2000 notes of his co-worker Marty Bolden,
as after-discovered evidence. Claimant filed Bolden's notes
with his request for review.
Commission Rule 3.3 provides:
No new evidence may be introduced by a
party at the time of review except upon
agreement of the parties. A petition to
reopen or receive after-discovered evidence
may be considered only upon request for
review.
A petition to reopen the record for
additional evidence will be favorably acted
upon by the full Commission only when it
appears to the Commission that such course
is absolutely necessary and advisable and
also when the party requesting the same is
able to conform to the rules prevailing in
the courts of this State for the
introduction of after-discovered evidence.
Therefore, the party seeking to re-open the record to submit
after-discovered evidence must prove that "(1) the evidence was
obtained after the hearing; (2) it could not have been obtained
prior to the hearing through the exercise of reasonable
diligence; (3) it is not merely cumulative, corroborative or
collateral; and (4) it is material and should produce an
opposite result before the commission." Williams v. People's
Life Ins. Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 (1995).
related to steroid injections given to treat his non-compensable
low back condition.
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The evidence submitted by claimant did not meet the second
prong of the requirements for admitting after-discovered
evidence. The evidence existed long before the hearing date,
and Bolden's notes or his testimony could have been obtained
prior to or at the hearing through the exercise of due
diligence. Accordingly, the commission did not err in refusing
to consider such evidence.
For these reasons, we affirm the commission's decision.
Affirmed.
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