Opinion
Record No. 0698-92-3
February 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Daniel Schorsch (Poindexter, Schorsch Patterson, on briefs), for appellant.
Charles F. Hilton (Wharton, Aldhizer Weaver, on brief), for appellees.
Present: Chief Judge Koontz, Judges Moon and Willis
Argued at Salem, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On February 19, 1987, Stanley Summers Nelson (Nelson) sustained a compensable injury to both wrists and his neck while working for Mays Electric Company (employer). On December 10, 1990, Nelson suffered a fatal heart attack. Subsequently, Linda K. Nelson (Mrs. Nelson), Nelson's wife, filed an application for benefits alleging that the 1987 injury "and the sequelli therefrom materially aggravated or accelerated [Nelson's] heart condition and contributed to his death on December 10, 1990." The Workers' Compensation Commission (commission) denied benefits. Mrs. Nelson contends on appeal that credible evidence does not support the commission's decision. We disagree.
The principles guiding our review of Mrs. Nelson's claim are well settled. The commission's findings of fact are binding and conclusive on appeal if based on credible evidence. Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592, 595 (1985). The commission's determination of causation is such a finding of fact. Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). Moreover,
[w]e do not retry the facts before the Commission, nor do we review the weight, preponderance of the evidence, or the credibility of witnesses. If there is evidence or a reasonable inference that can be drawn from the evidence to support the Commission's finding, they will not be disturbed by this court on appeal.
Jules Hairstylists, Inc., 1 Va. App. at 69, 334 S.E.2d at 595.
To establish a compensable claim, Mrs. Nelson must prove, by a preponderance of the evidence, a causal connection between the injuries sustained in the industrial accident in 1987 and Nelson's fatal heart attack. The commission found that the issue of causation was "essentially a medical one." After reviewing the opinions of Dr. Ross and Dr. Davies, the commission concluded that the medical evidence "does not establish a causal connection between the industrial accident and the fatal heart attack." We find that credible evidence supports the commission's finding.
Dr. Ross, Nelson's treating physician, testified that he could not state with a reasonable degree of medical certainty that changes in Nelson's lifestyle after his accident caused his fatal heart attack. He further testified that Nelson might have had the heart attack even if he had not experienced the lifestyle changes after his fall; in fact, he stated that Nelson's long-term smoking, alone, may have caused his death. Thus, Dr. Ross was able to raise only the possibility of a causal connection between the injury and the death. See Vilseck v. Campbell, 242 Va. 10, 14-15, 405 S.E.2d 614, 616 (1991) (medical opinions must be based upon reasonable medical certainty, not possibilities). Dr. Davies, on the other hand, testified that Nelson, in all likelihood, would have expired at the approximate time he did, even in the absence of the industrial accident.
Upon our review of the record, we find that credible evidence supports the commission's decision. Accordingly, the commission's decision is
Affirmed.