Opinion
Record No. 0108-94-1
Decided: July 5, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Mary Louise Kramer; Sarah Y. M. Kirby; Sands, Anderson, Marks Miller, on brief), for appellants.
(Gene A. Woolard; Joynes Bieber, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Master Truck Repair, Inc. and its insurer (collectively referred to herein as "employer") contend that the Workers' Compensation Commission erred in finding that (1) James J. Perkins (claimant) sustained an injury by accident on March 19, 1991; (2) the injury and treatment to his right foot were causally related to the March 19, 1991 injury by accident; and (3) the injury and treatment to his left foot, including but not limited to the October 16, 1992 MRI, were causally related to the March 19, 1991 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. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
I. Injury by Accident
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission are binding 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).
The commission found claimant to be a credible witness and that his uncontradicted testimony established an injury by accident occurring on March 19, 1991. The commission found that claimant's testimony about the puncture wound, and the medical records of Drs. John M. Morina, Paul N. Krop, Matthew M. Tignor, and Gregory J. Warth, sufficiently established an injury by accident occurring at a specific time and place on March 19, 1991.
Because this credible evidence supports the commission's findings, we cannot say as a matter of law that the commission erred in finding claimant sustained a compensable injury by accident to his right foot on March 19, 1991.
II. and III. 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). Moreover, " '[w]hen an injury sustained in an industrial accident accelerates or aggravates a preexisting condition, . . . disability resulting therefrom is compensable. . . .' " Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986) (quoting Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985)).
Dr. Warth's September 17, 1991 letter report and February 9, 1993 report provide credible evidence to support the commission's finding of a causal relationship between claimant's right foot injury and treatment and the March 19, 1991 industrial accident. Dr. Krop's January 15, 1993 letter report and "April 39 [sic], 1993" letter report provide credible evidence to support the commission's finding of a causal relationship between claimant's left foot injury and treatment, including the October 16, 1992 MRI, and the March 19, 1991 industrial accident.
The commission accepted the opinions of these physicians, and rejected the opinion of Dr. Herbert W. Park, III, a physiatrist, who opined that claimant's disability was the result of the natural progression of his preexisting diabetic condition. "Questions of 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). "The fact that there is contrary evidence in the record is of no consequence, if there is credible evidence to support the commission's findings." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
The treating physicians, Drs. Morina, Krop, and Warth, were most familiar with claimant, having examined and treated him over an extended period of time. Dr. Park, who was hired by employer to review medical records and to testify at the hearing, had never examined or treated claimant. Moreover, Dr. Park's conclusion that claimant did not suffer an injury at work was inconsistent with the objective findings of a puncture wound at the time treatment commenced on March 21, 1991. When the issue is one of conflicting medical evidence, greater weight may be given to the treating physician's opinion where he or she makes a positive diagnosis. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339, S.E.2d 570, 572 (1986).
For the reasons stated, we conclude that credible evidence supports the commission's findings of an injury by accident occurring on March 19, 1991, that resulted in an aggravation of claimant's underlying diabetic condition which ultimately resulted in the amputation of his right leg and the injury and treatment to his left foot, including the October 16, 1992 MRI. Accordingly, we affirm the commission's decision.
Affirmed.