COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
PATRICIA DIANE HUTTON
MEMORANDUM OPINION *
v. Record No. 1386-97-3 PER CURIAM
NOVEMBER 18, 1997
STERLING CASKET HARDWARE COMPANY, INC.
AND CINCINNATI CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lawrence L. Moise III; Vinyard & Moise, on
briefs), for appellant.
(Christen W. Burkholder, on brief), for
appellees.
Patricia Diane Hutton (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove that her herniated lumbar disc, corresponding
surgery, and disability from March 5, 1996 through July 21, 1996
were causally related to her February 23, 1993 compensable 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. 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).
"General principles of workman's compensation law provide that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
'[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570,
572 (1986)). Unless we can say as a matter of law that
claimant's evidence sustained her 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 denying claimant's application and finding that her
evidence failed to prove that her herniated lumbar disc and
corresponding 1996 surgery and subsequent disability were
causally related to her compensable February 23, 1993 injury by
accident, the commission found as follows:
Two physicians have commented on the
claimant's current condition and whether it
is caused by the earlier compensable injury.
Dr. Neal A. Jewell, orthopedic surgeon, has
expressed his unequivocal opinion that her
current back condition is entirely new,
particularly in light of the normal
diagnostic studies noted between September
23, 1993, and September 22, 1995. Dr. Melvin
L. Heiman, the treating orthopedic surgeon,
initially agreed, but subsequently expressed
some misgivings as to the accuracy of the
prior diagnostic studies and their
interpretation. However, Dr. Heiman's
reservations do not contradict his earlier
opinion in which he agreed with Dr. Jewell.
Finally, we do find his indication of a
possible causal connection sufficient to
carry the burden of proof.
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Dr. Jewell's opinions and the diagnostic test results
support the commission's findings. As fact finder, the
commission was entitled to accept Dr. Jewell's opinion and to
reject Dr. Heiman's contrary opinion. "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, 215 (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). "[W]hen it
appears . . . that the [treating physician's] diagnosis is shaded
by doubt, and there is medical expert opinion contrary to the
opinion of the attending physician, then the trier of the fact is
left free to adopt that view which is most consistent with reason
and justice." Bristol Builders' Supply Co. v. McReynolds, 157
Va. 468, 471, 162 S.E. 8, 9 (1932); see Reeves, 1 Va. App. at
439, 339 S.E.2d at 572.
Claimant's argument that the commission erred by not
applying the doctrine of compensable consequences is without
merit. The doctrine of compensable consequences provides:
where a causal connection between the initial
compensable injury and the subsequent injury
is established, the doctrine of compensable
consequences extends the coverage of the
Workers' Compensation Act to the subsequent
injury because the subsequent injury "is
treated as if it occurred in the course of
and arising out of the employee's
employment."
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American Filtrona Co. v. Hanford, 16 Va. App. 159, 163, 428
S.E.2d 511, 513 (1993) (quoting Bartholow Drywall Co. v. Hill, 12
Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991) (citations
omitted)). Here, claimant's evidence failed to prove a causal
connection between the initial February 23, 1993 compensable
injury and her herniated lumbar disc diagnosed in 1995 and
operated on in 1996.
Based upon this record, we cannot say as a matter of law
that claimant's evidence sustained her burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
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