COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
WALKER J. FERGUSON
MEMORANDUM OPINION*
v. Record No. 3010-99-3 PER CURIAM
MAY 9, 2000
LIMITORQUE CORPORATION AND
PACIFIC EMPLOYERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Henry G. Crider, on brief), for appellant.
Appellant submitting on brief.
(Douglas A. Seymour; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.
Appellees submitting on brief.
Walker J. Ferguson appeals a decision of the Workers'
Compensation Commission denying him compensation benefits.
Ferguson contends that the commission erred in (1) finding that
he failed to prove he sustained a compensable injury by accident
on August 27, 1997; (2) finding that he failed to prove that his
disability between July 28, 1998 and March 7, 1999 was causally
related to the injury by accident; and (3) failing to apply the
"two causes" rule. We affirm the commission's decision.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Injury by Accident
Our review of the commission's opinion reveals that the
commission agreed with the deputy commissioner that Ferguson was
struck in the lower back by a control valve at work on August
27, 1997. The dispositive issue before the commission, and
before this Court on appeal, is whether Ferguson proved a causal
connection between the injury by accident and his treatment and
disability between July 28, 1998 and March 7, 1999.
Causation
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). So
viewed, the record establishes that on September 11, 1998, Dr.
Larry S. Davidson, a neurosurgeon, who first examined Ferguson
on July 29, 1998, opined as follows:
Since [Ferguson's] last visit here, he has
undergone EMG/NCS per Miles Wallace. These
studies are consistent with a diabetic
neuropathy, which explains his lower
extremity numbness. I would agree that this
does not explain his pain in the lower back
or the right lower extremity. I think these
complaints are more consistent with
mechanical pain secondary to degenerative
changes of the lumbar spine, perhaps in
combination with the trauma previously
described. . . . Again, as before, he does
not appear to have any significant thecal
sac compression or symptoms thereof, and his
lower extremity numbness is explained by his
diabetic neuropathy. Thus, we are left with
back pain, which I think is poorly treated
with surgery and probably better addressed
with conservative efforts.
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Relying upon Dr. Davidson's opinion, the commission made the
following findings:
The only evidence regarding the cause
of [Ferguson's] pain in 1998 was offered by
Dr. Davidson on September 11, 1998. . . .
Dr. Davidson clearly felt that [Ferguson's]
pain was related to degenerative changes of
his spine, and offered only the equivocal,
speculative term "perhaps" to refer to the
possibility that it was related to the
accident in 1997. . . . [Ferguson's] proof
of causation between the accident in 1997,
and the disability in 1998 and 1999 does not
rise above the level of conjecture.
The principle is well established that "[a] medical opinion
based on a 'possibility' is irrelevant [and] purely
speculative." Spruill v. Commonwealth, 221 Va. 475, 479, 271
S.E.2d 419, 421 (1980). In its consideration of Ferguson's
medical records and Dr. Davidson's opinion, the commission could
reasonably find that the medical evidence established, at best,
that Ferguson's back injury "perhaps" was caused by the work
injury.
"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). Thus, in light of the speculative
nature of Dr. Davidson's opinion and the lack of any other
persuasive medical evidence of a causal connection, the
commission was entitled to conclude that the evidence failed to
prove that Ferguson's treatment and disability between July 28,
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1998 and March 7, 1999 were causally related to his August 27,
1997 accident.
Because the medical evidence was subject to the
commission's factual determination, we cannot hold as a matter
of law that the evidence sustained Ferguson's burden of proof.
See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970). The commission's findings, which are
supported by credible evidence, are binding and conclusive upon
us.
"Two Causes" Rule
Ferguson contends that the commission erred in not applying
the "two causes" rule to find his claim compensable. "The
principle is well established that 'where a disability has two
causes: one related to the employment and one unrelated [to the
employment] . . . full benefits will be allowed.'" Ford Motor
Co. v. Hunt, 26 Va. App. 231, 237-38, 494 S.E.2d 152, 155 (1997)
(citation omitted). Ferguson argues that his inability to work
stemmed from two causes, both his back pain and his lower limb
weakness, the former having arisen first.
With respect to this issue, the commission found as
follows:
[T]he medical evidence clearly establishes
that the numbness and weakness in
[Ferguson's] legs was caused by his diabetic
condition. Further, Dr. Davidson opined
that the claimant's pain was "consistent
with" mechanical low back pain related to
degenerative changes of the spine. The only
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evidence that [Ferguson's] back pain in 1998
and 1999 was related to the 1997 accident is
[Dr. Davidson's] statement that the
mechanical pain was caused by the
degenerative changes, "perhaps" in
combination with the trauma reported. . . .
Dr. Davidson did not opine that the 1997
accidental trauma "did" contribute to the
mechanical back pain. Rather, he speculated
that "perhaps" it did.
Based upon these findings, which are amply supported by the
record, the commission did not err in concluding that Dr.
Davidson's opinion was not sufficient "to bring the 'two causes'
rule into play" and that Ferguson's evidence did "not meet the
level of medical proof required for causation."
For these reasons, we affirm the commission's decision.
Affirmed.
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