Opinion
Record No. 0946-92-2
September 22, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Henry A. Conner, Jr.; Conner and Associates, Ltd., on brief), for appellant. Appellant submitting on brief.
(Scott S. Cairns; McGuire, Woods, Battle Boothe), for appellee. Appellee submitting on brief.
Present: Chief Judge Koontz, Judges Baker and Elder.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Roger Stockner appeals from a decision of the Virginia Workers' Compensation Commission, which affirmed the deputy commissioner's denial of benefits. On appeal, Stockner argues that the commission erred in concluding that he failed to meet his burden of production as to whether his diagnosed post traumatic stress syndrome arose out of his employment. For the reasons stated herein, we affirm the decision of the commission.
At the hearing before the deputy commissioner, Stockner testified that, at the time the injury arose, he was a telephone installation and repair technician, which required that he climb telephone poles. During 1990, after twenty-three years on the job, Stockner began to experience nervousness while climbing. His nervousness increased until he was no longer able to reach the top of the pole and, therefore, became unable to perform his duties. As a result, appellant took disability leave and filed this claim for workers' compensation. He sought benefits on the ground that his disability is compensable as an occupational disease under either Code § 65.2-400 (formerly § 65.1-46) or § 65.2-401 (formerly § 65.1-46.1).
In spite of appellant's assertions that his disability was an occupational disease as defined by statute, the evidence showed that appellant had experienced anxiety and depression during 1970-71 and 1974, some of which was related to an automobile accident (not linked to his employment), for which he had received treatment. During August and September 1990, appellant again was diagnosed, by two different doctors, as suffering from depression and panic attacks. A third doctor reported that the depression and related problems had persisted over a period of three years prior to the 1990 disability and that "the precipitating event `appears to be the failure of [appellant's] employer to promote him three years ago to a position he desired.'"
On these facts, the deputy commissioner found that appellant was not suffering from a statutorily defined occupational disease. Appellant appealed to the full commission. The commission found that appellant's depression and similar problems were not related to his employment and affirmed the ruling of the deputy commissioner.
On review by this Court, a determination of legal causation by the commission is "a factual finding that will not be disturbed on appeal if there is credible evidence to support [it]." Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989) (citing Code § 65.1-98); see also James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (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 finding." See, e.g., Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citing Franklin Mortgage Corp. v. Walker, 6 Va. App. 108, 110-11, 367 S.E.2d 191, 193 (1988) (en banc)). In this case, the record clearly contains credible evidence to support findings that appellant's emotional problems resulted from sources other than his employment, that he had a history of episodic depression, and that the current episode was most directly linked to his being passed over for a promotion, which is an insufficient basis for finding the existence of an occupational illness. Even though appellant testified that he thought the disability was linked to his employment, the record contains credible evidence to support the commission's determination.
For the aforementioned reasons, we affirm the commission's denial of benefits.
Affirmed.