COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
VAGHARSHAK A. VARTANIAN
MEMORANDUM OPINION* BY
v. Record No. 2048-98-4 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 28, 1999
ADVANTAGE AUTO STORES AND
ZURICH INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Vagharshak Vartanian, pro se, on brief).
(Edward H. Grove, III; Brault, Palmer, Grove,
Zimmerman, White & Mims, on brief), for
appellees.
Vagharshak Vartanian ("claimant") contends that the
Workers' Compensation Commission ("commission") erred in finding
that he failed to prove that (1) his varicose veins were caused
by a physical therapy session on September 19, 1997 necessitated
by his compensable August 5, 1997 left knee injury; and (2) his
post-September 25, 1997 disability was causally related to his
compensable August 5, 1997 injury by accident. 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; Smith v. Commonwealth,
16 Va. App. 630, 635, 432 S.E.2d 2, 5 (1993).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, 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).
Unless we can say as a matter of law that claimant's evidence
sustained his 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).
In ruling that claimant failed to sustain his burden of
proof, the commission found as follows:
While we find that there is an
association in time between the emergence of
claimant's varicose veins and his physical
therapy on September 19, 1997, there is no
opinion from either of the physicians, Dr.
[Danielle] Cheung or Dr. [Michael] Clemens,
who examined claimant for his vein problems,
that these vein problems were in any way
caused by claimant's physical therapy
regimen. Dr. [Fredric] Salter believed it
unlikely that claimant's varicose veins were
the result of the physical therapy regimen.
None of the doctors have stated an opinion
that the claimant is unable to return to
work because of varicose veins, and the
orthopedic physicians have cleared the
claimant to return to work without
restriction.
. . . In this case there is no opinion
from any physician causally relating the
claimant's varicose veins to his accident or
his physical therapy for his left knee
injury sustained in that accident. For the
Commission to infer such a causal
relationship would be mere speculation
without any expert guidance from the
physicians who have examined the claimant.
- 2 -
The commission's findings are amply supported by the
record. Based upon the lack of any persuasive medical opinion
that claimant's varicose veins were caused by his compensable
August 5, 1997 left knee injury or by his physical therapy
regimen, we cannot say as a matter of law that claimant's
evidence sustained his burden of proving causation. In
addition, because it was undisputed that claimant's orthopedic
physicians released him to return to work without restrictions,
we cannot say as a matter of law that he proved that his
post-September 25, 1997 disability was causally related to his
compensable August 5, 1997 injury by accident.
For these reasons, we affirm the commission's decision.
Affirmed.
- 3 -