COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
BONNIE BE-LO MARKETS AND
MERCHANTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION * BY
v. Record No. 1273-00-1 JUDGE G. STEVEN AGEE
MARCH 13, 2001
BENNY EDWARD HOUSE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Walker (Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellants.
Chanda L. Wilson (Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellee.
Bonnie Be-Lo Markets and its insurer (hereinafter referred
to as "employer") contend on appeal that the Workers'
Compensation Commission erred in its May 4, 2000 opinion which
held that Benny Edward House (claimant) proved that (1) he
sustained a compensable injury by accident on December 5, 1997;
and (2) that he has been totally disabled since December 5,
1997, as a result of the December 5, 1997 injury by accident.
We affirm the decision of the Workers' Compensation Commission.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
The claimant had worked for the employer as a meat cutter
since 1995. Before December 5, 1997, claimant suffered from
back problems for which he had undergone seven back surgeries,
the last of which occurred in July 1997. Following the July
1997 back surgery, claimant remained out of work until November
3, 1997. Claimant's treating physician, Dr. Mark B. Kerner,
executed a document dated October 29, 1997, which said only the
following:
Benny House is able to return to his full
time work duties as a meat cutter without
restriction on 11/3/97.
Claimant testified that before he returned to work on
November 3, 1997, Dr. Kerner did not tell him that he should
avoid performing work which required heavy lifting. Claimant
testified that Dr. Kerner told him to wear a back brace and to
be careful as to how he lifted objects. Claimant stated that he
wore a back brace after he returned to work in November 1997
when his job necessitated heavy lifting.
After claimant returned to work as a meat cutter on
November 3, 1997, he was able to perform his regular duties,
including heavy lifting, up until December 5, 1997. Claimant
testified that on December 5, 1997, he tried to move a case of
meat weighing approximately one hundred pounds from the floor to
a dolly. As he did so, he experienced pain in his back that
radiated into his right hip and right leg. Claimant was wearing
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a back brace at the time of the accident. After the December 5,
1997 incident, claimant again sought medical treatment from Dr.
Kerner. Claimant has not returned to work since December 5,
1997.
Dr. Kerner wrote several letters to counsel or insurance
carriers after his initial treatment of the claimant for the
December 5, 1997 injury. Reflective of that correspondence is a
letter of January 14, 1998 to Trigon in which Dr. Kerner wrote:
I did not give the patient permission to go
back to his usual and customary duties.
Quite the opposite. I told him it would be
foolish and wrong for him to return to that
work.
All of Dr. Kerner's recorded statements of this type are
after the December 5, 1997 accident.
On December 9, 1997, Dr. Kerner diagnosed "a work related
flare of injury . . ." and opined that "the patient appears
unable to return to his usual and customary work . . . ."
ANALYSIS
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
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I. Injury by Accident
Employer argues that claimant failed to prove he sustained
an "accident" on December 5, 1997, as defined by the Workers'
Compensation Act, on the ground that claimant's December 5, 1997
back injury was the foreseeable result of his returning to work
as a meat cutter, which required heavy bending, lifting and
twisting, contrary to Dr. Kerner's instructions to avoid such
work. The commission rejected this argument and found as
follows:
The claimant testified that he did not have
any restrictions resulting from his
pre-existing back condition. His testimony
is supported by [Dr. Kerner's] October 29,
1997, release "to return to his regular
full-time duties as Meat Cutter without
restriction on 11/3/97." This release is
clear and not subject to interpretation.
Claimant's testimony, coupled with Dr. Kerner's unequivocal
written release allowing claimant to return to full-time work as
a meat cutter without restriction as of November 3, 1997
constitutes credible evidence to support the commission's
finding that claimant sustained a compensable injury by
accident. The commission, as fact finder, was entitled to
accept claimant's testimony that before December 5, 1997, Dr.
Kerner never told him to avoid work that required heavy lifting,
and to reject Dr. Kerner's post-December 5, 1997 office notes
and letters to the contrary. "In determining whether credible
evidence exists, the appellate court does not retry the facts,
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reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). "The fact that there is contrary evidence in the record
is of no consequence if there is credible evidence to support
the commission's finding." Id.
II. Disability
In ruling that claimant proved that he was totally disabled
beginning December 5, 1997 and that such disability was causally
related, at least in part, to his December 5, 1997 injury by
accident, the commission found as follows:
The record does not reflect that Dr. Kerner
released the claimant to light-duty work.
The employer notes that in his January 14,
1998, letter to the insurer, Dr. Kerner
wrote that the claimant was able to perform
light-duty employment. In that letter, Dr.
Kerner stated that: "He has to basically do
light sedentary activities with his back.
He can do no heavy bending, lifting, or
twisting . . . ." However, Dr. Kerner also
stated that at times, the claimant "is
entirely incapacitated." It is unclear
whether Dr. Kerner believes the claimant is
capable of returning to light-duty work. In
any event, he has not communicated any
release to the claimant. An employee is not
required to market his residual work
capacity until after he has been advised of
his release to light-duty employment.
"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). Furthermore, "[t]he actual
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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).
As fact finder, the commission was entitled to weigh the
medical evidence. Based upon Dr. Kerner's December 9, 1997
office notes and his August 13, 1999 letter to claimant's
counsel in which he indicated that "[t]he incremental increase
in [claimant's] disability from such an injury would not be
considered to be more than 5 or 10 percent of his total
disability . . . [,]" the commission was entitled to infer that
claimant's post-December 5, 1997 disability was causally
related, at least in part, to his December 5, 1997 injury by
accident.
Moreover, as fact finder, the commission could infer that
the language contained in Dr. Kerner's January 14, 1998 letter
did not constitute a release to light-duty work. While Dr.
Kerner commented that claimant engaged in light-sedentary
activities, he also noted that claimant could not perform heavy
lifting, bending or twisting and was totally incapacitated at
times. The commission could conclude Dr. Kerner did not
specifically release claimant to light or sedentary work.
"Where reasonable inferences may be drawn from the evidence in
support of the commission's factual findings, they will not be
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disturbed by this Court on appeal." Hawks v. Henrico County
Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
For these reasons, we affirm the commission's decision.
Affirmed.
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