Opinion
Record No. 1613-94-2
Decided: March 28, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert L. Flax; Flax, Embrey Stout, on brief), for appellant.
(Francis G. Marrin, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Barry L. Bailey contends that the Workers' Compensation Commission erred in ruling that he was not disabled after March 31, 1993 as a result of a January 1992 accident. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
On 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). Unless we conclude as a matter of law that Bailey proved disability related to the January 1992 accident, then the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Bailey sustained a compensable injury on December 19, 1992, for which the appellees paid temporary total benefits from January 12, 1993 until March 30, 1993. The nature of the December 19, 1992 injuries involved an inguinal hernia and pain "in the center of his back" which were brought on when Bailey was delivering a television set for his employer, Purcell Electronics.
Deputy Commissioner Lee heard the case involving the December 19, 1992 injury. Lee found that "Dr. Lowry released the claimant to light duty" on March 24, 1993. Lee further "concluded that Dr. Lowry's diagnosis of chronic subluxation of the cervical, thoracic and lumbar regions was not causally related to the claimant's December 19, 1992 back and hernia condition." Bailey did not appeal Lee's decision, and it became final.
On August 3, 1993, Bailey filed another claim for benefits relating to an accident occurring in January 1992. Bailey sought compensation for wage loss and medical benefits from "March 30, 1993 to the present." The employer stipulated that appellant suffered a compensable injury to his back on January 20, 1992, but argued that any disability from March 31, 1993 forward was not causally related to the January 1992 accident.
The commission denied the claim, and made the following findings:
The burden is upon the claimant to establish by a preponderance of the evidence that the accident of January 20, 1992, caused disability. Although he testified to disabling pain and an inability to find work within his current lifting restrictions (25 pounds), we find upon Review that the evidence, taken as a whole, does not establish disability. In so holding, we note that the claimant received medical treatment on numerous occasions after January 20, 1992, for the same complaints treated before that date. We also note Dr. Lowry's report of April 6, 1993, setting forth a 25-pound lifting restriction. However, that restriction was the result of "chronic subluxation of cervical, thoracic, lumbar regions." These three conditions were found by Deputy Commissioner Lee to be preexisting, and ". . . There is no evidence that Bailey's December 19, 1992 accident aggravated this underlying condition. . . ."
(Footnote omitted.)
We cannot say, as a matter of law, that Bailey sustained his burden of proof. Bailey suffered from a "subluxation to the cervical spine" since June 7, 1991. At the hearing before Deputy Commissioner Lee, Bailey testified that he had recovered prior to the December 19, 1992 injury. Lee found that the subluxation was a preexisting injury. Lee's award "was not appealed and became final."
Dr. Lowry's notes of January 22, 29 and 30, 1992, do not reveal treatment for a new injury or exacerbation. They speak only of continuing treatment. Moreover, Dr. Lublin examined Bailey, analyzed his x-rays, and determined that he had "no musculoskeletal disability."
For these reasons, we affirm the commission's decision.
Affirmed.