COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
McMURPHY COAL COMPANY
AND
OLD REPUBLIC INSURANCE COMPANY
v. Record No. 1389-95-3 MEMORANDUM OPINION *
PER CURIAM
EDDIE LEE MILLER OCTOBER 31, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. T. Mullins; Street, Street, Street, Scott &
Bowman, on brief), for appellants.
(Paul L. Phipps; Wolfe & Farmer, on brief), for
appellee.
McMurphy Coal Co. and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that (1) Eddie L. Miller proved he
sustained an injury by accident arising out of and in the course
of his employment on November 13, 1992; and (2) a causal
relationship exists between Miller's disc herniation and
resulting disability and the November 13, 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Background
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 proved that, on November 13, 1992, while
working for employer as a scoop operator, Miller ran over a rock,
which caused his head and shoulders to hit the mine roof. He
felt pain over his entire body, which subsided after
approximately fifteen minutes. On that same day, he told his
supervisor, Bobby Ridings, about the accident. Miller's back
pain gradually worsened throughout December 1992. On December
28, 1992, he was pulling cable into a scoop and felt severe back
pain. This incident was witnessed by Ridings.
On December 30, 1992, Miller sought medical treatment from
Dr. Wolfgang Zahnke, a general surgeon. Miller told Dr. Zahnke
that his back pain began approximately one month earlier. An MRI
performed in January 1992 revealed that Miller suffered from a
herniated disc at the L5-S1 level on the right.
On February 2, 1993, Miller's physical therapist noted that
Miller attributed his back injury to an incident at work on
November 16, 1992, when he was operating a scoop machine and ran
over a rock.
On February 10, 1992, Miller told Dr. S.C. Kotay, an
orthopedic surgeon, that he injured his back on November 13,
1992, when he ran over a rock while operating a scoop machine at
2
work. In his February 12, 1993 Attending Physician's Report, Dr.
Kotay attributed Miller's disc herniation and resulting
disability to the November 13, 1992 incident.
Dr. Phillip O. Tibbs, a neurosurgeon, who performed surgery
on Miller's back, opined that the November 1992 accident caused
Miller's disc herniation and subsequent surgery.
Miller gave two recorded statements to employer's
representatives, one on February 8, 1993 and one on March 11,
1993. In both statements, Miller mentioned the November 13, 1992
incident, but he acknowledged that he was unsure of the exact
cause of his back injury.
Injury by Accident
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] 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). The commission found that Miller
sustained an injury by accident arising out of and in the course
of his employment on November 13, 1992. Miller's undisputed
testimony, essentially corroborated by Ridings, provides ample
credible evidence to support the commission's finding. Thus,
that finding is conclusive on this appeal. James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
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In rendering its decision, the commission also considered
the various medical histories and Miller's recorded statements,
and resolved any conflicts in this evidence in favor of Miller. 1
"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 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.
Causation
"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 and opinions of Drs. Kotay and Tibbs
provide credible evidence that link Miller's disc herniation,
surgery, and disability to the November 13, 1992 injury by
accident.
For these reasons, we affirm the commission's decision.
Affirmed.
1
In a March 21, 1995 opinion, we remanded this case to the
commission for it to consider all relevant evidence, including
the medical histories, in order to determine whether Miller
proved that he sustained a compensable injury. McMurphy Coal Co.
v. Miller, 20 Va. App. 57, 455 S.E.2d 265 (1995).
4