COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
WOODROW W. MOORE, JR.
v. Record No. 0450-01-1
ALLIED SYSTEMS, LTD. and
RELIANCE NATIONAL INDEMNITY COMPANY
MEMORANDUM OPINION*
and PER CURIAM
JUNE 19, 2001
ALLIED SYSTEMS, LTD. and
RELIANCE NATIONAL INDEMNITY COMPANY
v. Record No. 0512-01-1
WOODROW W. MOORE, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Woodrow W. Moore, Jr., pro se, on brief.)
(Adam S. Rafal; Kelly O. Stokes; Vandeventer
Black, LLP, on brief), for Allied Systems,
Ltd. and Reliance National Indemnity Company.
Woodrow W. Moore, Jr. (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that he was disabled from performing his pre-injury work between
July 6, 1999 and August 3, 1999 as a result of his compensable
March 9, 1999 and March 13, 1999 work-related accidents. On
cross-appeal, Allied Systems, Ltd. and its insurer (hereinafter
referred to as "employer") contend that the commission erred in
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(1) considering the August 3, 1999 office notes of Dr. Lawrence
Morales that were not in the record before the deputy
commissioner; and (2) finding that claimant proved that medical
treatment rendered by Meyersdale Medical Center, Dr. Timothy
Budorick, and Dr. Morales was causally related to claimant's
compensable March 9 or 13, 1999 work-related accidents. Upon
reviewing the record and the parties' briefs, we conclude that
these appeals are without merit. Accordingly, we summarily
affirm the commission's decision. See Rule 5A:27.
I. Disability between July 6, 1999 and August 3, 1999
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See 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 temporary total disability benefits for
the period from July 6, 1999 through August 3, 1999, the
commission found as follows:
The claimant did not show . . . that he
was forced to miss work between July 6 and
August 3, 1999, as there was no medical
evidence restricting him from work. Dr.
Budorick noted on June 22, 1999, that the
claimant should remain out of work for two
weeks, after which time he would "return to
work most likely." The claimant did not
return to Dr. Budorick, however, and Dr.
Morales noted on August 3, 1999, that the
claimant was working and did not recommend
that he discontinue working. The claimant
was required to produce medical evidence
supporting his claim that he was medically
unable to work between July 6 and August 3,
1999. We do not believe that he made this
showing.
The commission's findings are amply supported by the
medical records of Drs. Budorick and Morales. Based upon the
lack of any persuasive medical evidence that claimant was
disabled from work between July 6 and August 3, 1999 as a result
of his compensable injuries, we cannot find as a matter of law
that the claimant's evidence sustained his burden of proof.
II. Dr. Morales' August 3, 1999 Office Note
In deciding to consider Dr. Morales' August 3, 1999 office
note, the commission found as follows:
The employer objects to our considering
Dr. Morales' August 3, 1999, office note as
"after discovered evidence." The deputy
commissioner noted in the August 29, 2000,
Opinion that the August 3, 1999, note was
not contained in the record. The claimant
submitted this record in his written
statement on Review. The transcript of the
August 8, 2000, hearing indicated that the
deputy commissioner queried the parties at
the hearing whether any additional medical
records required submission, and the
claimant submitted Dr. Morales' records from
August to September 1999. The deputy
commissioner responded that he "had those,"
and returned the records to the claimant.
We believe under these circumstances, the
claimant appropriately submitted the
August 3, 1999, record for our consideration
on Review.
Based upon this record, the commission could reasonably
infer that claimant submitted Dr. Morales' August 3, 1999 office
note to the deputy commissioner at the hearing, but that the
deputy commissioner returned it to claimant under the mistaken
belief that all of Dr. Morales' August and September 1999
medical records were already in the commission's file. Under
these circumstances, Dr. Morales' August 3, 1999 office note did
not constitute "after-discovered evidence," and the commission
did not abuse its discretion by considering it on review.
III. Medical Treatment (Causation)
"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).
In ruling that claimant proved a causal connection between
his medical treatment and his March 9 and 13, 1999 work-related
accidents, the commission found as follows:
The June 3, 1999, emergency room record
indicated that the claimant had been
suffering from back pain "over the last
several months." The claimant credibly
testified that he suffered back pain
on-and-off since the March 9 and 13, 1999,
accidents, and only decided on June 3, 1999,
that he could not go without treatment any
longer. He testified that he reported the
March 9, 1999, accident to his employer, and
"filled out" something concerning the
accident with either Tracy or Brenda,
administrative employee's [sic] with the
employer. No panel was provided, however,
and he decided to seek emergency treatment
on June 3, 1999.
Dr. Budorick's notes corroborated this
testimony in that they described the
claimant as suffering from intermittent back
symptoms for some time. Moreover, Dr.
Budorick described the claimant recalling
"certain positions" as aggravating his back
symptoms.
The commission's findings are supported by credible
evidence, including the emergency room reports, claimant's
testimony, and the medical reports of Drs. Budorick and Morales.
Based upon these findings, the commission, as fact finder, could
reasonably infer that "claimant has suffered from intermittent
back pain since the March 9 and 13, 1999, compensable accidents,
and that the treatment he received at the emergency room and
with Dr. Budorick and Dr. Morales stemmed from those accidents."
For these reasons, we affirm the commission's decision.
Affirmed.