COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
STEEL FAB, INC. and
INSURANCE COMPANY OF NORTH AMERICA
MEMORANDUM OPINION *
v. Record No. 1972-96-3 PER CURIAM
JANUARY 7, 1997
DANIEL L. KEITH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Arthur T. Aylward; Midkiff & Hiner, on
brief), for appellants.
(Martin Wegbreit; Client Centered Legal
Services of Southwest Virginia, Inc., on
brief), for appellee.
Steel Fab, Inc. and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission (commission) erred in finding that (1) Daniel L. Keith
(claimant) sustained an injury by accident arising out of and in
the course of his employment on April 17, 1995; (2) claimant's
back condition was causally related to the April 17, 1995
accident; (3) claimant was totally disabled beginning April 18,
1995 and continuing; and (4) claimant had not been released to
light-duty work as of July 12, 1995. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
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).
So viewed, the evidence established that on April 17, 1995,
claimant was working for employer as a welder. Claimant
testified that at approximately 6:45 p.m. on that day, the
following occurred:
I was going to flip [the tank] over and the
rollers on the buggy was locked up. The tank
[which weighed between seventy-five and 100
pounds] was hard to turn and when I went to
turn it, in a split second it tried to take
off, the buggy did where it was on the
tank. . . . I tried to keep the tank on the
buggy and keep it from falling, hold it up
and flip it over. . . . A sudden pain come
in my back and shot down my leg.
Toby Taylor, who was working next to claimant on April 17, 1995,
testified that claimant hollered at Taylor for help with the tank
and told Taylor that he'd hurt his back.
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).
Claimant's testimony, which is consistent with the history of the
accident that he reported to Johnston Memorial Hospital emergency
room personnel, Med-One personnel, and Dr. Matthew Wood, and
which was corroborated by Taylor's testimony, provides credible
evidence to support the commission's finding that claimant
sustained an injury by accident arising out of and in the course
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of his employment on April 17, 1995. Therefore, this finding is
conclusive on appeal. "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).
II.
"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).
The medical records of Johnston Memorial Hospital, Wise
Appalachian Regional Hospital, Dr. Michael Lady of Med-One, and
Dr. Daniel Robertson provide substantial credible evidence to
support the commission's finding that claimant's back problem and
disability were causally related to the April 17, 1995 injury by
accident. Therefore, we will not disturb this finding on appeal.
Employer contends that these medical records do not
constitute credible evidence because these medical providers were
not aware of a back injury sustained by claimant in March 1995.
However, the commission found that the March 1995 injury was
minor and did not result in disability. The evidence showed that
claimant did not seek medical care after the March 1995 back
injury nor did he miss any work. Claimant testified that the
March 1995 injury resolved before the April 17, 1995 accident.
In addition, he stated that while he experienced some soreness
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after the March 1995 incident, the April 17, 1995 accident felt
as if someone hit him in the back with an axe. Based upon
claimant's testimony, the commission, as fact finder, was
entitled to infer that the March 1995 injury was minor, and that
claimant's continuing severe incapacitating pain and disability
after April 17, 1995 was causally related to the April 17, 1995
injury by accident. "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).
III. and IV.
Neither Dr. Wood nor Dr. Robertson released claimant to
return to light duty work as of his last office visit to these
physicians. Rather, they both recommended further treatment.
Claimant did not undergo further treatment because employer's
insurer denied his claim. Based upon this record, the commission
did not err in finding that claimant remained disabled and had
not been released to return to light-duty work.
For these reasons, we affirm the commission's decision.
Affirmed.
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