COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
THE GOODYEAR TIRE & RUBBER COMPANY AND
TRAVELERS INDEMNITY COMPANY OF ILLINOIS
MEMORANDUM OPINION*
v. Record No. 2092-00-3 PER CURIAM
DECEMBER 28, 2000
DIANE N. NEWCOMB
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James A. L. Daniel; Martha White Medley;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on brief), for appellants.
(Stephen G. Bass; Carter, Craig, Bass,
Blair & Kushner, P.C., on brief), for
appellee.
The Goodyear Tire & Rubber Company and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission erred in finding that Diane N.
Newcomb (claimant) proved that the deQuervain's disease in her
right wrist and the epicondylitis in her right elbow and
disability related thereto were causally related to her November
2, 1992 compensable left arm 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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). "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). "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 ruling that claimant sustained her burden of proving a
compensable change-in-condition, the commission found as follows:
[T]he claimant has established that she
developed right deQuervain's syndrome and
epicondylitis as a result of overuse of [her
right] extremity necessitated by the November
2, 1992, injury to her left arm. . . . [W]e
note the consistent medical reports of Dr.
[Anthony] DeFranzo causally relating the
right arm condition to this accident. We
have reviewed all medical reports in the
record . . . . We can find nothing in these
reports to indicate that the claimant's
problem is the result of a condition other
than that diagnosed by Dr. DeFranzo. We note
that a 1993 a [sic] nerve conduction study
specifically ruled out carpal tunnel
syndrome. Any finding that the claimant had
osteoarthritis appeared to be incidental to
other treatment she received. We also note
there was never any definitive diagnosis of
this condition, only a suspicion. We are
cognizant of the report of Dr. [Stephen]
Leibovic, who has found the claimant does not
have deQuervain's disease, but had CMC
synovitis and multiple inflammatory
complaints known as diffuse synovitis or
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fibromyalgia. We find, after considering all
medical reports, that Dr. DeFranzo is in the
best position to determine the nature of
claimant's condition. He has treated her for
more than seven years, and has had the
opportunity to observe her on a regular
basis. In his deposition, he was positive in
his diagnosis of deQuervain's syndrome,
noting that perhaps at the time she was
evaluated by Dr. Leibovic it was after she
had received treatment by injection and her
symptoms were not as acute.
"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). In its role as fact finder, the
commission was entitled to weigh the medical evidence, to accept
Dr. DeFranzo's opinions, and to reject Dr. Leibovic's opinions.
Dr. DeFranzo's medical records and opinions, coupled with
claimant's testimony, constitute credible evidence to support the
commission's decision. During his deposition, Dr. DeFranzo did
not indicate that any of his opinions regarding the causation of
claimant's right arm problems would change as a result of
receiving information from employer's counsel regarding claimant's
medical records and past medical treatment. "'[W]hen an attending
physician is positive in his diagnosis . . . , great weight will
be given by the courts to his opinion.'" Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986)
(citations omitted). "The fact that there is contrary evidence in
the record is of no consequence if there is credible evidence to
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support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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