COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
WILLIAM BYRD REED
v. Record No. 2212-95-1 MEMORANDUM OPINION *
PER CURIAM
DOUGHTIE'S FOODS, INC. MARCH 26, 1996
AND
HOME INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Alan P. Owens, on brief), for appellant.
(Robert A. Rapaport; Lynne M. Ferris;
Knight, Dudley, Clarke & Dolph, on brief),
for appellees.
William Byrd Reed ("claimant") contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that his December 22, 1993 compensable injury by accident caused
his back symptoms or an aggravation of his preexisting back
condition. 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.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In holding that claimant failed to prove he sustained a back
injury or an aggravation of a preexisting condition causally
related to the December 22, 1993 injury by accident, the
commission found as follows:
A review of the medical record reflects that
there were no contemporaneous complaints of
back pain from the fall on December 22, 1993.
Indeed, the first report of back pain was on
January 4, 1994, 13 days after the accident.
Diagnostic studies revealed
spondylolisthesis and spondylosis in the
lumbar region, the same condition which was
diagnosed following the industrial injury of
October 20, 1992. The only physician who
evaluated the claimant for both injuries, Dr.
[Sterling R.] Williamson, [an orthopedic
surgeon], opined that there was no
correlation between the current back problems
and the accident of December 22, 1993. He
offered this opinion after performing an
examination and after reviewing the medical
records related to the December 1993
accident. Likewise, Dr. [Steven C.] Blasdell
[an orthopedic surgeon] reached the same
conclusion.
The commission also found that claimant's evidence did not prove
he sustained an aggravation of his preexisting back condition as
a result of the December 22, 1993 accident. In so ruling, the
commission rejected the opinions of Drs. Harry J. Molligan and
David L. Durica, orthopedic surgeons.
The medical records and opinions of Drs. Williamson and
Blasdell support the commission's decision. The commission was
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entitled to accept their opinions and to reject the contrary
opinions of Drs. Molligan and Durica. "Questions raised by
conflicting medical opinions must be decided by the commission."
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989).
Moreover, in its role as fact finder, the commission was
entitled to determine what weight, if any, was to be given to Dr.
Molligan's opinion. "It lies within the commission's authority
to determine the facts and the weight of the evidence . . . ."
Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60,
396 S.E.2d 392, 395 (1990). Dr. Molligan based his opinion upon
an inaccurate history, because he was under the impression that
claimant's back complaints began contemporaneously with the
December 22, 1993 accident. Where a medical opinion is based
upon an incomplete or inaccurate medical history, the commission
is entitled to conclude that the opinion is of little probative
value. See Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52,
329 S.E.2d 15, 16 (1985). In addition, the commission was
entitled to find Dr. Williamson's opinion more persuasive than
that of Dr. Durica. Dr. Williamson was the only physician who
evaluated claimant after the October 1992 back injury and after
the December 22, 1993 accident.
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained his burden of proving that the
December 22, 1993 injury by accident caused his back symptoms or
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an aggravation of his preexisting back condition. Accordingly,
we affirm the commission's decision.
Affirmed.
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