COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
HEALTHSOUTH MEDICAL CENTER/
HEALTHSOUTH REHABILITATION
CORPORATION AND INSURANCE
COMPANY OF NORTH AMERICA MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2690-96-2 APRIL 15, 1997
GLORIA PIGNATORE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James G. Muncie, Jr.; Midkiff & Hiner, on
brief), for appellants.
(Andrew J. Reinhardt; Kerns, Kastenbaum &
Reinhardt, on brief), for appellee.
HealthSouth Medical Center, HealthSouth Rehabilitation, and
its insurer (hereinafter collectively referred to as "employer")
contend that the Workers' Compensation Commission (commission)
erred in finding that Gloria Pignatore proved by a preponderance
of the evidence that her November 14, 1995 back surgery and
resulting disability were causally related to her compensable
December 26, 1992 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. R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence showed that Dr. Anthony G. Velo, a
neurosurgeon, treated Pignatore for a back injury in 1983 and
performed surgery on Pignatore's back on March 5, 1984.
Pignatore's symptoms continued after the surgery on an
intermittent basis. On July 24, 1987, Pignatore was involved in
an automobile accident which exacerbated her back symptoms.
There is no evidence of medical treatment for Pignatore's back
symptoms between February 1990 and December 1992.
Pignatore worked for employer for two years as a licensed
practical nurse. On December 26, 1992, she sustained a
compensable low back strain while lifting a patient. Dr. Michael
K. Kyles, an orthopedic surgeon, began treating Pignatore for
this injury. He diagnosed a low back strain with nerve root
involvement, for which he provided conservative treatment. On
June 13, 1994, after conservative treatment failed to resolve
Pignatore's back symptoms, Dr. Kyles recommended surgery.
Surgery was postponed at that time and considered again in April
1995. On November 2, 1995, Dr. Kyles opined that surgery to
alleviate the compression of Pignatore's disc at L5-S1 on the
right was absolutely necessary.
Upon a referral from Dr. Kyles, Pignatore sought medical
treatment from Dr. Bruce E. Mathern, a neurosurgeon. Dr. Mathern
also opined that the surgery was necessary.
Employer declined to pay for the surgery. Therefore,
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Pignatore sought treatment from her family physician, who then
referred her to Dr. J. Michael Simpson, an orthopedic surgeon.
On November 14, 1995, Dr. Simpson performed a decompressive
laminectomy of L-4 and L-5, and bilateral lateral fusion at L-4
to S-1 with Synthes pedicle screw instrumentation and left
posterior iliac crest bone graft. Dr. Simpson opined that
Pignatore's back pain and November 14, 1995 surgery were caused
by her injury sustained while working for employer.
Dr. David Cifu, a physiatrist, performed a medical records
review for employer. Dr. Cifu opined that the 1992 work-related
accident was not the cause of Pignatore's current symptoms or the
surgery. He opined that the surgery was a direct result of
degenerative disc disease and scarring since 1983. "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). The commission considered the
totality of the evidence and ruled that Pignatore proved a causal
connection between her 1995 surgery, and resulting disability,
and her compensable 1992 injury by accident. In so ruling, the
commission found that "[t]he compensable injury, in fact was
superimposed upon [Pignatore's] preexisting back condition." See
Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428
S.E.2d 32, 34 (1993). Noting that Dr. Kyles did not attribute
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Pignatore's injury solely to the 1992 event, the commission found
that he did not exclude the 1992 event as a contributing cause.
The commission further weighed the medical evidence and accepted
Dr. Simpson's opinion that a causal connection existed between
the surgery and the compensable injury. Dr. Simpson's opinion
provides 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." Id.
In its role as fact finder, the commission was entitled to
weigh and reject the opinions of Drs. Kyles and Cifu. "[I]t is
fundamental that a finding of fact made by the Commission is
conclusive and binding upon this court on review. A question
raised by conflicting medical opinion is a question of fact."
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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