Opinion
Record No. 2001-92-4
May 25, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Douglas K. W. Landau; Abrams, Landau Ltd., on briefs), for appellant.
(Thomas D. Pearson, Jr, on brief), for appellee R S. Enterprises.
(Mary Sue Terry, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General; Gaye Lynn Taxey, Assistant Attorney General, on brief), for appellee Uninsured Employers Fund.
Present: Chief Judge Moon, Judges Barrow and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Cynthia Grant Brown contends that the commission erred in (1) considering the causal relationship between her industrial accident and her injuries, after both defendants stipulated to such at the hearing; and (2) finding that she failed to meet her burden of proving a causal relationship between her industrial accident and her injuries.
On appellate review, we will construe the evidence in the light most favorable to the party prevailing before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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) (citing Code § 65.1-98). Unless we can say, as a matter of law, that Brown's evidence was sufficient to meet her burden of proof, the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The record reveals that the defendants did not stipulate to the period of disability or to the issue of causal relationship at the hearing. Brown's application alleged injuries to her head, neck, back and shoulders as a result of a fall she allegedly suffered in a bathroom on November 30, 1989 while working for a fast food restaurant located in Springfield Mall. She also alleged that the fall caused her to go into premature labor and to give premature birth to her child. A review of the transcript demonstrates that the defendants stipulated only that Brown sustained an injury by accident, to the body parts alleged, and labored and gave birth prematurely. Thus, Brown's argument that the commission should not have considered the causation issue on review, because of the defendants' stipulations, is without merit.
Moreover, a review of the medical records demonstrates that Brown failed to provide evidence of a causal relationship between her fall and her alleged injuries. The medical evidence does not provide any clear opinion that Brown's fall of November 30, 1989 caused her to sustain head, neck, back or shoulder injuries, nor that it caused her premature labor and delivery. Additionally, there is no evidence in the medical records that Brown was to remain out of work for any period of time due to any injuries which were caused by her fall. Furthermore, Brown told the doctor in the emergency room on November 30, 1989 that she had been having the tightening in her abdomen for two to three weeks prior to the fall. Accordingly, we cannot say, as a matter of law, that Brown's evidence was sufficient to sustain her burden of proof. Thus, the commission's finding that Brown failed to prove an injury and resulting disability is binding and conclusive upon us.
In response to questions from Brown's counsel contained in a March 23, 1992 letter, Dr. Barry Rothman stated that "A fall onto a hard surface could cause a pregnant patient to go into premature labor and would disable a patient for at least two weeks." (Emphasis added). The commission gave little weight to Dr. Rothman's statements. First, there is no evidence that he treated Brown or had any knowledge of the circumstances of her fall or her specific medical condition. Second, his statement was made in general terms with regard to a hypothetical patient and was not directed towards Brown. Third, he did not render an opinion that it was probable that Brown's fall caused her injuries and disability.
For the reasons stated, we affirm the commission's decision.
Affirmed.