COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
SAFEWAY, INC.
MEMORANDUM OPINION *
v. Record No. 0572-97-1 PER CURIAM
JULY 29, 1997
MARION BOSWELL ARROWOOD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(C. Ervin Reid; Wright, Robinson, Osthimer &
Tatum, on briefs), for appellant.
(C. Randall Stone, on brief), for appellee.
Safeway, Inc. contends that the Workers' Compensation
Commission erred in finding that Marion Boswell Arrowood's
psychiatric condition was causally related to his compensable
August 24, 1991 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). "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).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In holding that Arrowood's evidence sustained his burden of
proving that his psychiatric condition was causally related to
his compensable August 24, 1991 injury by accident, the
commission found as follows:
From this record, we find that Dr.
[Jose A.] Erfe's psychiatric treatment is
related, at least in part, to the industrial
accident. [Arrowood] had no previous
psychiatric history. He stated that he was
resilient after the first surgery, but when
his groin wound required two additional
surgeries, he became distressed. He was able
to maintain his emotional equilibrium while
working at a light duty job, despite
recurrent pain. However, when light duty was
no longer available, he became depressed. He
finally decided to seek psychiatric treatment
after two years of depression, weight gain,
and irritability. Dr. Erfe has unequivocally
related the depression to the accident, the
ongoing discomfort, and inability to work.
It is well-established that the Commission
generally defers to the positive opinion of a
treating physician over that of an
independent medical examiner. Dr.
[Merritt W.] Foster correctly notes that only
three surgeries directly related to the
accident; the other four involved urinary
tract problems which emerged following
catheterization at the hospital. Dr. Foster
erroneously reported that [Arrowood] had
returned to his regular job, and he dismissed
[Arrowood's] physical problems as
"subjective."
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinion of Dr. Erfe,
the treating psychiatrist. The commission was also entitled to
reject Dr. Foster's opinion. "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
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(1989). Dr. Erfe's opinion constitutes 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 the reasons stated, we affirm the commission's decision.
Affirmed.
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