COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
ENEIDA S. QUINTEROS
MEMORANDUM OPINION*
v. Record No. 2435-00-4 PER CURIAM
FEBRUARY 6, 2001
ABSOLUTE NURSING CARE OF VIRGINIA, INC. AND
AIU INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Eneida S. Quinteros, pro se, on brief).
(Mary Beth Nash; Monica L. Taylor; Gentry
Locke Rakes & Moore, on brief), for
appellees.
Eneida S. Quinteros (claimant) contends that the Workers'
Compensation Commission erred in finding that she failed to
prove that either she sustained a back injury at the time of her
compensable October 23, 1997 left knee injury or that her back
condition was a compensable consequence of her left knee injury.
Upon reviewing the record and the briefs of the parties, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
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).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"General principles of workman's compensation law provide that
'[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). Unless we can say as a matter of law that claimant's
evidence sustained her 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).
Injury by Accident
In ruling that claimant failed to establish that she
suffered an injury to her back on October 23, 1997, the
commission found as follows:
While we are cognizant of the claimant's
testimony that she began to feel pain in her
back one to one and one-half weeks after the
accident and so reported this to Dr.
[Edward] Alexander, we find nothing in his
medical reports referring to any back
problem until February 12, 1998, some four
months after the accident. In his February
15, 1999, letter, Dr. Alexander confirmed no
direct connection between the claimant's
back pain and injury. In addition, we note
the claimant, who was represented by
counsel, neither in her initial claim nor in
the Memorandum of Agreement noted any injury
other than to her left knee. In view of
this evidence and the fact that the claimant
apparently underwent prior back surgery, we
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cannot find that she established an injury
by accident to her back on October 23, 1997.
In light of the lack of any history of a back injury until
February 1998 and Dr. Alexander's opinion that there is no
causal connection between claimant's compensable knee injury and
her back condition, the commission, as fact finder, was entitled
to reject claimant's hearing testimony and to conclude that she
failed to establish a causal connection between her back
condition and her compensable knee injury.
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained her burden of proof.
Compensable Consequence
In ruling that the evidence failed to establish that
claimant's back problem was the result of a compensable
consequence from her left knee injury, the commission accepted
the February 15, 1999 opinion of Dr. Alexander. On that date,
Dr. Alexander opined as follows:
Theoretically one could possibly make a
tenuous connection between the development
of a limp and the development of an L5
radiculopathy which showed up on the EMG but
this as mentioned would be quite tenuous. I
can see no direct connection between the
incident of her injury and what we see now,
though there is no doubt that she has a real
problem.
As fact finder, the commission was entitled to accept Dr.
Alexander's February 15, 1999 unequivocal opinion, and to give
little probative weight to his earlier response to a request
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from claimant and his May 7, 1998 statement. In addition, the
commission was entitled to accept Dr. Alexander's opinion and to
reject the contrary September 30, 1998 opinion of Dr. Neil
Speigel. Dr. Speigel opined that claimant had developed back
and leg pain because of the abnormality with her foot drop and
chronic pain. The commission found Dr. Speigel's opinion to be
vague and inconsistent with the medical records, which reflected
that claimant experienced back pain before the foot drop.
"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).
Based upon Dr. Alexander's February 15, 1999 opinion and
the record taken as a whole, we cannot find as a matter of law
that claimant's evidence sustained her burden of proving that
her back condition was a compensable consequence of her left
knee injury.
For these reasons, we affirm the commission's decision. 1
Affirmed.
1
Appellees have filed a motion to redact appendix filed by
appellant. We deny the motion.
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