COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
GOODYEAR TIRE & RUBBER COMPANY AND
TRAVELERS INDEMNITY COMPANY OF ILLINOIS
MEMORANDUM OPINION*
v. Record No. 1753-00-3 PER CURIAM
NOVEMBER 28, 2000
KATHRYN HINTON BOWE
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.
Goodyear Tire & Rubber Company and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Kathryn Hinton
Bowe (claimant) proved that she sustained a compensable injury
by accident to her left knee on April 2, 1999. Specifically,
employer argues that claimant failed to prove that her left knee
injury and disability were causally related to the April 2, 1999
accident. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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. 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). "In determining whether
credible evidence exists, the appellate court does not retry the
facts, 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).
In holding that claimant established a compensable injury
by accident to her left knee on April 2, 1999, the commission
found as follows:
[C]laimant's hearing testimony concerning
the accident on April 2, 1999, is supported
by the employer's clinic notes, as well as
the subsequent medical reports. Dr. [Mark
G.] Nevin and Dr. [Robert] Cassidy have
related the claimant's left knee injury to
the April 2, 1999, accident. We note that
even if the claimant experienced problems
with her left knee in December 1998, she had
no additional difficulties and received no
treatment until after the April 2, 1999,
accident. While the surgery the claimant
subsequently underwent for her left knee may
have been similar to that on her right knee,
this does not negate that, at most, in
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December 1998 the claimant's x-ray of her
left knee showed osteoarthritic changes.
There was no evidence at that time of a torn
lateral meniscus for which Dr. Cassidy
operated on claimant after the April 2,
1999, accident. While we have considered
the report of Dr. [K. Thomas] Wagoner[,
Jr.], we find that the medical reports of
Dr. Nevin and Dr. Cassidy relating
claimant's problem to the April 2, 1999,
accident, are more persuasive. Dr. Wagoner
never examined the claimant. He merely
reviewed the medical reports supplied by the
employer. His report does not consider that
the December entry from the employer and
Piedmont Prime Care may have incorrectly
noted the left knee as opposed to the right
knee. In addition, his report does not
adequately take into consideration the onset
of symptoms and findings by the physicians
who treated the claimant in January 1999 and
subsequently for her April 1999 accident.
In its role as fact finder, the commission was entitled to
accept the opinions of Drs. Nevin and Cassidy, and to reject Dr.
Wagoner'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). The opinions of Drs. Nevin and Cassidy, coupled with
claimant's testimony, constitute credible evidence to support
the commission's findings. "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." Wagner, 12 Va.
App. at 894, 407 S.E.2d at 35.
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For these reasons, we affirm the commission's decision.
Affirmed.
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