COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
MAC CONSTRUCTION COMPANY, INC. AND
BITUMINOUS CASUALTY CORPORATION
MEMORANDUM OPINION *
v. Record No. 2597-96-3 PER CURIAM
MARCH 11, 1997
BOBBY G. HARRISON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael F. Blair; Penn, Stuart & Eskridge,
on brief), for appellants.
(Gerald F. Sharp; Browning, Lamie & Sharp,
P.C., on brief), for appellee.
Mac Construction Company, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that (1)
Bobby G. Harrison (claimant) proved that his June 13, 1995 injury
by accident caused a compensable aggravation of his preexisting
back condition; and (2) the June 13, 1995 injury was not a known
and expected result of claimant's violation of the restrictions
imposed upon him by Dr. Neal A. Jewell. Upon reviewing the
record and the briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
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commission's decision. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Employer did not appeal the commission's finding that
claimant proved that the June 13, 1995 lifting incident
constituted a compensable injury by accident. Accordingly, this
finding is conclusive and binding on appeal.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
I.
On September 24, 1992, claimant sustained a compensable
injury by accident resulting in a herniated disc. He underwent
surgery for this condition in November 1992. As of July 1993,
Dr. Jewell had released claimant to return to work with
restrictions prohibiting him from repetitive bending, lifting,
kneeling, or squatting, continuous bending or squatting, and
lifting more than thirty pounds occasionally and fifteen pounds
frequently. Claimant returned to work on light duty and
continued to work, with occasional layoffs unrelated to his
September 1992 injury, until June 13, 1995. Claimant stated that
between July 1993 and June 13, 1995, he was never free from pain
in his back and leg.
On June 13, 1995, claimant and three other men were carrying
a fifteen to twenty foot pipe. As they lowered the pipe,
claimant felt a "sting" in his back. Claimant sought medical
treatment on June 13, 1995. On June 22, 1995, claimant reported
the June 13, 1995 incident to Dr. Jewell, who noted that the
lifting incident resulted in acute pain. Claimant told Dr.
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Jewell that he had not been symptom-free since 1992. Dr. Jewell
excused claimant from work and eventually required that he
undergo several epidural steroid injections. On September 6,
1995, Dr. Jewell noted that the June 13, 1995 accident caused an
exacerbation of claimant's continuing and chronic back condition.
In a September 6, 1995 letter, Dr. Jewell stated that if the
June 13, 1995 accident had not occurred, claimant could have
continued to work as a flagman. Dr. Jewell opined that the June
13, 1995 accident "aggravated the already present disc disease
related to [claimant's] injury of September 1992." In his
October 19, 1995 deposition, Dr. Jewell stated that claimant's
post-June 13, 1995 disability was "directly related" to the June
13, 1995 incident and "indirectly related" to the September 24,
1992 accident. Dr. Jewell reiterated his opinion in a December
10, 1995 letter. In that letter, Dr. Jewell opined that if
claimant's symptoms had continued between 1993 and 1995, then
claimant's June 13, 1995 accident was an aggravation of his
preexisting chronic back condition.
It is well settled that when an injury by accident
accelerates or aggravates a preexisting condition, disability
resulting therefrom is compensable. Russell Loungewear v. Gray,
2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). In its role as
fact finder, the commission was entitled to weigh the medical
evidence and to accept Dr. Jewell's opinions. Dr. Jewell's
opinions, coupled with claimant's testimony, provide credible
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evidence to support the commission's finding that claimant proved
that a new injury by accident on June 13, 1995 resulted in a
compensable aggravation of claimant's preexisting back condition.
"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).
II.
Claimant's testimony provides credible evidence to support
the commission's finding that the pipe lifted by claimant and his
three coworkers on June 13, 1995 weighed approximately 100
pounds. "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. Based upon claimant's testimony, the
commission could infer that, with all four men lifting the pipe
with equal exertion, claimant's actions did not exceed Dr.
Jewell's restriction prohibiting claimant from lifting more than
thirty pounds. "Where reasonable inferences may be drawn from
the evidence in support of the commission's factual findings,
they will not be disturbed by this Court on appeal." Hawks v.
Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698
(1988).
For the reasons stated, we affirm the commission's decision.
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Affirmed.
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