COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
C. W. WRIGHT CONSTRUCTION COMPANY, INC.
AND
INSURANCE COMPANY OF NORTH AMERICA MEMORANDUM OPINION *
PER CURIAM
v. Record No. 3070-96-4 MAY 6, 1997
LARRY W. BURACKER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(A. James Kauffman; Taylor, Hazen & Kauffman,
on brief), for appellants.
(Nikolas E. Parthemos; Prosser, Parthemos &
Bryant, on brief), for appellee.
C. W. Wright Construction Company and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission erred in finding that Larry
W. Buracker proved that his December 22, 1986 compensable injury
by accident caused his brain injury. 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989).
The evidence proved that on December 22, 1986, Buracker fell
approximately thirty feet from a power pole where he was working.
He struck his head and the left side of his chest on the ground,
and he sustained multiple injuries, including a head injury.
Employer accepted the accident as compensable and paid Buracker
temporary total disability benefits pursuant to various awards of
the commission. Buracker returned to work for brief periods in
1988 and 1990.
Buracker filed an application seeking an award for permanent
total disability benefits pursuant to Code § 65.2-503(C)(3).
Employer stipulated that Buracker's brain injury was so severe as
to render him permanently unemployable in gainful employment.
However, employer contended that the brain condition was not
caused by the December 22, 1986 compensable accident.
In 1996, Dr. Bernard Lewis, a licensed clinical psychologist
who began treating Buracker in 1988, opined that Buracker "is
completely and totally disabled from any form of gainful
employment . . . [,] that this is directly attributable to the
head injury he suffered in the December 22, 1986 fall . . . [,
and] that his total disability is permanent . . . ." In
addition, Dr. Glenn J. Kehs, a neurologist, examined Buracker,
reviewed Buracker's medical records, and opined that Buracker
sustained a permanent brain injury as a result of the December
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22, 1986 accident, rendering him permanently and totally
disabled.
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinions of Drs.
Lewis and Kehs, and to reject any contrary medical opinions.
"Questions raised by conflicting medical opinion must be decided
by the commission." Penley v. Island Creek Coal Co., 8 Va. App.
310, 318, 381 S.E.2d 231, 236 (1989). Under the circumstances of
this case, we find no merit in employer's argument that the
commission should not have considered the opinion of a licensed
clinical psychologist, especially, where as here, a neurologist
agreed with the psychologist's opinion.
The opinions of Drs. Lewis and Kehs provide 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). "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." Id.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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