Opinion
Record No. 0810-93-4
October 26, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(John J. Grimaldi, II; Rosenthal, Rich, Grimaldi Guggenheim, on briefs), for appellant.
(Joseph C. Veith, III, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
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 (commission). Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Albert Thurber (claimant) contends that the commission erred in finding that he failed to prove the requisite causal connection between his July 1992 cervical-diskectomy and fusion and his compensable 1982 industrial accident. Claimant argues that the commission erred in accepting the opinion of neurosurgeon Edward R. Lang over that of the treating osteopathic physician, Dr. David B. Winter.
On appellate review, we will 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). "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 existence of contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Unless we can say as a matter of law, that Thurber's evidence was sufficient to meet his 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).
"A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). Factual findings of the commission will be upheld 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). "Medical evidence is not necessarily conclusive, but is subject to the commission's consideration and weighing."Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991) (citation omitted).
In denying claimant's application, the commission accepted Dr. Lang's opinion that claimant's disc degeneration at C5-6, which necessitated the July 1992 surgery, was not causally related to the 1982 accident. The commission rejected Dr. Winter's opinion that the 1992 surgery was causally related to the 1982 accident. In its role as fact finder the commission was entitled to give more weight to the opinion of Dr. Lang than that of Dr. Winter. Dr. Lang's opinion, which was the product of an independent medical examination, constituted credible evidence.
The commission discounted Dr. Winter's opinion because it was based on the inaccurate premise that claimant had complained of left arm pain ever since 1982, when in fact, the last time prior to March 1992 that he had complained of left arm pain was in November 1985. In addition, Dr. Winter admitted that, since 1985, claimant had been employed in various other jobs involving lifting and that such jobs could cause degeneration of the spine. Finally, Dr. Winter acknowledged that he would defer to the opinions of neurologists and orthopedists in matters concerning surgical conditions of the spine. In that regard, Dr. James R. Howe, neurosurgeon, and Dr. J. R. Wittenborn, neurologist, who examined claimant on referral from Dr. Winter, both stated that claimant dated his symptoms of left upper extremity numbness and cramping to March 1992. These doctors did not provide any opinion regarding causation.
We also note that the record does not contain any of the medical records related to Dr. Winter's 1992 treatment of claimant or reports related to claimant's July 1992 surgery.
While we have stated that the opinion of the treating physician is entitled to great weight, Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986), the law does not require that the treating physician's opinion be accepted over that of other physicians. Accordingly, the commission was free to accept the opinion of Dr. Lang over that of Dr. Winter.
For the reasons stated, we affirm the commission's decision. Affirmed.
Since our ruling on the causation issue disposes of this appeal, we will not address the "new accident" argument raised by the employer.