COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Baker
THURONDIE L. CHISHOLM
MEMORANDUM OPINION *
v. Record No. 0786-98-4 PER CURIAM
AUGUST 25, 1998
THE WASHINGTON POST AND
GALLAGHER BASSETT SERVICES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert A. Mordhorst; Mordhorst, Taweel &
Adams, on brief), for appellant.
(Charles F. Midkiff; Midkiff & Hiner, on
brief), for appellees.
Thurondie L. Chisholm ("claimant") contends that the
Workers' Compensation Commission ("commission") erred in denying
him an award of compensation benefits on the ground that he
failed to prove that he sustained more than seven days of
disability during the two-year period immediately following his
May 8, 1993 injury by accident. Pursuant to Rule 5A:21(b), The
Washington Post ("employer") raises the additional question of
whether the commission erred in finding that claimant proved a
causal relationship existed between his May 8, 1993 back injury
and his subsequent medical treatment and uncompensated
disability. 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. Rule
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
5A:27.
Disability Benefits
On May 8, 1993, while working for employer as a paper
handler, claimant was removing paper rolls from a terminal and
placing them in two lanes. After claimant placed a roll in a
lane, he stepped backwards to back down some steps. A handrail
on the steps was missing and claimant fell backwards about three
to four feet, landing on his lower back. On March 7, 1996,
claimant filed an application seeking wage loss benefits and
medical benefits.
The commission held that because the employer did not file
the Employer's First Report of Accident until January 24, 1996
and claimant proved prejudice, the statute of limitations was
tolled and claimant's March 7, 1996 application was not
time-barred. Employer does not challenge this finding on appeal.
The commission further held that claimant was not entitled
to an award of disability benefits on the ground that he failed
to prove that he missed more than seven days from work during the
two years immediately following his May 8, 1993 injury by
accident. Claimant contends that based upon this Court's holding
in Mayberry v. Alcoa Building Products, 18 Va. App. 18, 441
S.E.2d 349 (1994), he was not required to prove compensable
disability within two years after the date of his accident, but
only that he sustained some disability within two years after the
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accident. We disagree. 1
In Mayberry, this Court held that where an employee did not
file a timely application or demonstrate any disability during
the two-year period following the industrial accident, that
employee could not be awarded compensation for total disability
which occurred more than two years after the injury by accident.
See id. at 20, 441 S.E.2d at 350. We specifically held that
"[w]e affirm because Mayberry had no awardable work incapacity
within two years from the date of his accident." Id. at 19, 441
S.E.2d at 349. Compensation for work incapacity is not awardable
for the first seven calendar days of incapacity resulting from an
injury unless certain exceptions are met. See Code § 65.2-509.
None of those exceptions apply in this case.
Here, it was undisputed that claimant did not prove that he
sustained more than seven days of work incapacity during the
two-year period immediately following his accident. Thus,
because claimant failed to prove that he incurred any awardable
disability during the two-year period following his accident, the
commission did not err in denying his request for compensation
benefits.
1
Claimant also argues that because the statute of
limitations was tolled, the period in which he was required to
prove compensable disability should also have been tolled until
employer filed the Employer's First Report of Accident. Claimant
did not raise this argument before the commission. Accordingly,
we will not address it for the first time on appeal. See Green
v. Warwick Plumbing & Heating Corp., 5 Va. App. 409, 413, 364
S.E.2d 4, 6 (1988); Rule 5A:18.
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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). "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). "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).
In ruling that claimant sustained his burden of proving a
causal relationship between his May 8, 1993 lower back injury and
his subsequent medical treatment and uncompensated disability,
the commission found as follows:
The employer's Written Statement correctly
points out that the medical records show the
claimant had similar symptoms both before and
after the accident, that, as also noted by
the Deputy Commissioner, the claimant was
less then accurate in his testimony about
previous symptoms and that in the records of
the nine doctors who treated the claimant,
there are about five different causes stated
for his injury.
The Deputy Commissioner gave greater
evidentiary weight to the fact that the
claimant did not have radiating symptoms in
his leg since 1987 and that three of the
doctors attributed the need for surgery to
the May 8, 1993, industrial accident.
Against this close and inconsistent record,
we AFFIRM the Deputy Commissioner's decision
that the evidence preponderates in
establishing the requisite causal connection.
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"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 the medical evidence, to accept
the opinions of Dr. Fraser C. Henderson, Dr. William Lauerman,
and Dr. Steven Taub, and to reject any contrary medical opinions.
The opinions and medical records of Drs. Henderson, Lauerman,
and Taub constitute credible evidence to support the commission's
decision. "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 Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For these reasons, we affirm the commission's decision.
Affirmed.
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