COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Senior Judge Overton
BOSTON CHICKEN MARKET/MAYFAIR PARTNERS
AND FIREMAN'S FUND INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2060-98-4 PER CURIAM
FEBRUARY 2, 1999
LORI A. MACK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Forest A. Nester; Brizendine, Bergen &
Tripoda, on brief), for appellants.
(Kathleen G. Walsh; Ashcraft & Gerel, on
brief), for appellee.
Boston Chicken Market/Mayfair Partners and its insurer
(hereinafter referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Lori A. Mack proved
that her disability and medical treatment were causally related
to her compensable November 7, 1994 injury by accident.
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). "In determining whether
credible evidence exists, the appellate court does not retry the
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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, "[q]uestions 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 holding that claimant proved that her disability and
medical treatment were causally related to her compensable injury
by accident, the commission found as follows:
It is significant that Dr. [Fraser C.]
Henderson, in a letter of October 17, 1997,
unequivocally opined that the medical
treatment was directly caused by the
work-related fall:
Her condition though in part due to
congenital abnormality of the
craniocervical junction was the
direct result of her fall whilst at
work at Boston Chicken. The
surgery performed to correct the
abnormality was the direct result
of this fall. The surgery would
not have been performed had she not
fallen. . . . [emphasis added]
This statement is not the first time Dr.
Henderson has related the medical treatment
to the injury. On July 20 and November 14,
1995, he asserted that the claimant's
symptoms and signs were causally linked to
her work-related fall. Dr. Henderson never
equated her condition solely to the
automobile accident. Moreover, the early
medical records consistently reflect that a
connection was being made between the
claimant's employment and the neck pain.
While the medical records contain information
about the minor automobile accident, they
also distinctly note neck pain two to three
weeks prior to that minor accident.
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In its role as fact finder, the commission was entitled to
accept Dr. Henderson's opinions and to reject the contrary
opinion of Dr. Edward R. Lang, a neurosurgeon, who examined
claimant on May 14, 1997, at employer's request. As the treating
neurosurgeon, Dr. Henderson's opinions were entitled to be given
great weight by the commission. See Pilot Freight Carriers, Inc.
v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). Dr.
Henderson's medical records and opinions constitute credible
evidence from which the commission could reasonably infer that
claimant's medical treatment and disability were causally related
to her compensable injury by accident. "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.
For these reasons, we affirm the commission's decision.
Affirmed.
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