COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
NEW RIVER CASTINGS COMPANY
AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1552-99-3 PER CURIAM
NOVEMBER 16, 1999
JAMES A. MAPLE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(J. Gorman Rosenberger, Jr.; Wilson, Garbee &
Rosenberger, on brief), for appellants.
(Richard M. Thomas; Rider, Thomas,
Cleaveland, Ferris & Eakin, on brief), for
appellee.
New River Castings Company and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that
James A. Maple proved that his L4-5 disc herniation (1) was
causally related to his compensable June 23, 1997 injury by
accident; and (2) did not constitute a new injury that occurred
in October 1997. 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, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
"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). Moreover, 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).
Claimant's treating neurosurgeon, Dr. Ralph O. Dunker, Jr.,
who began treating claimant in July 1997 and twice performed
surgery on claimant's back, opined that it was "more likely than
not" that claimant's L4-5 disc herniation was caused either
directly by the June 23, 1997 injury by accident or constituted
"a natural progression or deterioration" of the condition caused
by that injury by accident. Dr. Raymond V. Harron, a
neurosurgeon, who examined claimant and reviewed his diagnostic
studies upon referral from Dr. Dunker, opined that claimant's
need for surgery to repair his L4-5 disc defect was related to
the June 23, 1997 injury.
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Based upon these medical opinions and the medical records,
the commission concluded that claimant proved a causal
relationship between the L4-5 disc herniation and his
compensable June 23, 1997 injury by accident.
The medical records and opinions of Drs. Dunker and Harron
constitute credible evidence to support the commission's
finding. In its role as fact finder, the commission was
entitled to accept the opinions of Drs. Dunker and Harron and to
reject the contrary opinions of Drs. Robert B. Stephenson and
Anthony G. Bottini. Dr. Stephenson only examined claimant three
times. Dr. Bottini did not examine claimant at all and merely
reviewed his medical records. "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). Where medical evidence conflicts and the treating
physician is positive in his or her diagnosis, then his or her
opinion will generally be afforded greater weight by the courts.
See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439,
339 S.E.2d 570, 572 (1986).
II.
Claimant acknowledged in his testimony that just before his
October 1997 myelogram CT, he rolled from his back to his left
side while on his couch at home and felt a sharp pain. However,
he testified that he had never experienced any lower back
problems before the June 23, 1997 injury by accident. He also
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stated that he had experienced pain in his lower back
continuously since June 23, 1997.
The commission concluded that "the evidence failed to prove
that a new injury was the cause of the claimant's new disc
defect." The medical records, which documented claimant's
ongoing and continuous back pain before October 1997, and the
opinions of Drs. Dunker and Harron constitute credible evidence
to support the commission's finding. Based upon that evidence,
the commission could reasonably infer that the pain claimant
felt in October 1997 was merely a part of the ongoing symptoms
he had experienced since the June 23, 1997 accident. "Where
reasonable inferences may be drawn from the evidence in support
of the commission's factual findings, they will not be 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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