COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
STONE CONTAINER CORPORATION
MEMORANDUM OPINION *
v. Record No. 1861-96-3 PER CURIAM
FEBRUARY 4, 1997
EVELYN M. CLARK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Martha White Medley; Daniel, Vaughan,
Medley & Smitherman, on brief), for
appellant.
(Charles W. O'Donnell, on brief), for
appellee.
Stone Container Corporation (employer) contends that the
Workers' Compensation Commission (commission) erred in finding
that (1) Evelyn M. Clark (claimant) sustained an injury by
accident arising out of and in the course of her employment on
April 3, 1995; and (2) claimant's back condition and resulting
disability were causally related to the April 3, 1995 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.
I.
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). "In
order to carry [her] burden of proving an 'injury by accident,' a
claimant must prove that the cause of [her] injury was an
identifiable incident or sudden precipitating event and that it
resulted in an obvious sudden mechanical or structural change in
the body." Morris v. Morris, 238 Va. 578, 589, 385 S.E.2d 858,
865 (1989).
Claimant testified, that on April 3, 1995 while in the
course of her employment, she lifted a twenty pound bundle of
folded cardboard boxes onto an adjacent fifty-eight inch stack
and felt a "pulling sensation" in her lower back and left leg.
Claimant's testimony, which is not inconsistent with the
histories of her accident as recorded in the medical records,
provides credible evidence to support the commission's finding
that she proved an injury by accident arising out of and in the
course of her employment on April 3, 1995. Accordingly, this
finding is conclusive upon us.
II.
"The employer takes the employee as [she] is and if the
employee is suffering from some physical infirmity, which is
aggravated by an industrial accident, the employer is responsible
for the end result of such accident." McDaniel v. Colonial
Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225, 228
(1986).
The commission awarded claimant temporary total disability
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benefits, holding that her April 3, 1995 injury by accident
materially aggravated a preexisting condition. In so ruling, the
commission found as follows:
The claimant reported her injury to her
supervisor, Gravely, on the night it
occurred. She sought medical treatment
during the early morning hours of April 4,
1995, and gave a history of injuring her back
at work. Although the claimant admits a
prior history of back problems stemming from
a 1991 injury, we find it significant that
she had received no medical treatment for
this condition since April 1993.
Additionally, she had missed no time from
work due to her back condition during 1993,
1994, and the first three months of 1995
preceding her accident. Dr. [Richard L.]
Rauck, who has extensively treated the
claimant, reported that the accident of April
3, 1995, aggravated her preexisting condition
causing it to become symptomatic.
We must uphold the commission's findings of fact if they are
supported by credible evidence. James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). The
determination of causation is a factual finding. Ingersoll-Rand
Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
Moreover, "[q]uestions 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).
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept Dr. Rauck's opinion
regarding causation. The commission was also entitled to reject
the contrary opinion of Dr. Thomas Wagner, who examined claimant
at employer's request. Dr. Rauck's opinion, as well as the
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medical records and claimant's testimony, constitute 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 these reasons, we affirm the commission's decision.
Affirmed.
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Stone Container Corporation v. Evelyn M. Clark
Combined Opinion