COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
TRI-CITIES INDUSTRIAL BUILDERS, INC.
AND
NORTHERN INSURANCE COMPANY OF NEW YORK
MEMORANDUM OPINION *
v. Record No. 2038-98-3 PER CURIAM
JANUARY 26, 1999
ARLAN EUGENE DUNCAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Bruce G. Sandmeyer; Brumberg, Mackey & Wall,
on brief), for appellants.
(Gerald F. Sharp; Browning, Lamie & Sharp, on
brief), for appellee.
Tri-Cities Industrial Builders, Inc. and its insurer
(hereinafter referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in finding that
Arlan Eugene Duncan's back injury and resulting disability were
causally related to his compensable January 6, 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.
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
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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 Duncan proved that his back injury was
causally related to his compensable injury by accident, the
commission found as follows:
We are persuaded by the medical record
that [Duncan's] back injury was an initial
part of the work-related injury. While a
groin/abdominal wall injury was diagnosed by
the emergency room physician, and originally
by Dr. [Jacinto] Alvarado, all medical
records reflect complaints of back pain as
well. The emergency room nurse noted that
[Duncan's] pain radiated into his back.
After his initial examination on January 13,
1997, Dr. Alvarado wrote that he "was seen at
SCCH ER about a week ago for a pulled muscle
on the rt side that goes from the back to the
groin. . . ." and then prescribed physical
therapy for his back [emphasis added]. Upon
the first physical therapy session on January
14, 1997, the therapist recorded that "he was
lifting at work and felt a sharp pain in his
back. . . ." Dr. Alvarado's follow-up office
note of January 29, 1997, reflects that the
visit was for a "recheck" of [Duncan's] back
and that he "was seen here about 2 weeks ago
when we detected some pain on the rt groin
that went from the back down . . ."
[emphasis added]. Clearly, the treating
physician was recalling symptoms noted in the
previous visit and acknowledging the
continuous presence of back pain in
conjunction with the groin problem.
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Our finding is not disturbed by Dr.
Alvarado's vague statement on August 5, 1997,
that the claimant "may have done some heavy
lifting in January and that could have been
his initial problem. . . ." for several
reasons. First, his office notes do not
reflect a thorough account of how the injury
occurred. Accordingly, we do not conclude
that Dr. Alvarado would give a precise
statement on causation when his records do
not specify the conditions surrounding the
accident. . . . Lastly, there is no medical
evidence that the back problems arose from a
source other than the accident on January 6,
1997.
"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, 214 (1991). In its role as fact finder, the
commission was entitled to weigh Dr. Alvarado's medical records
and to determine what weight, if any, to give to his August 5,
1997 office note. Dr. Alvarado's medical records and the initial
emergency room records, coupled with the "Employee Statement,"
provide credible evidence from which the commission could
reasonably infer that claimant sustained a back injury as a
result of his January 6, 1997 compensable injury by accident.
"If there is evidence, or reasonable inferences can be drawn from
the evidence, to support the Commission's findings, they will not
be disturbed on review, even though there is evidence in the
record to support a contrary finding." Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,
877 (1986).
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For these reasons, we affirm the commission's decision.
Affirmed.
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