Opinion
Record No. 0071-93-3
July 13, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Donald G. Pendleton; Pendleton, Martin, Henderson Garrett, on brief), for appellant.
(J. Gorman Rosenberger, Jr.; Wilson, Garbee Rosenberger, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
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. Rule 5A:27.
Richard E. Banks contends that the commission erred in finding that the medical bills he incurred after his 1988 back surgery were not causally related to his compensable back injury sustained on April 19, 1982.
On appellate review, we will construe the evidence in the light most favorable to the party prevailing before the commission.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) (citing Code § 65.1-98). Unless we can say as a matter of law that Banks' evidence was sufficient to sustain his burden of proof, then 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).
In its December 21, 1992 opinion, wherein the commission found the employer not responsible for the cost of Banks' 1988 surgery and subsequent medical treatment related to his lower back, the commission held:
The claimant clearly had medically documented low back complaints from the spring of 1982 through December of 1987. We have no documentation of medical treatment for these complaints throughout 1988, until the fall of October 10, 1988. Dr. Hopkins' reports since that time have, almost without exception, related the December 1988 surgery to a new injury, i.e., disc herniation, sustained in the fall on October 10, 1988. Although the claimant's back was, no doubt, in weakened condition from the 1982 injury which had continued to be symptomatic as noted above, it appears to be Dr. Hopkins' opinion that the 1988 surgery was caused solely by injuries sustained in the fall. Any claim for back injury sustained in the fall has previously been determined to be time-barred.
On December 7, 1990, Deputy Commissioner Costa found that Banks' application, filed on October 3, 1990, alleging a back injury arising out of the 1988 fall, was time-barred as it had been filed more than two years after the initial accident date. A Memorandum of Agreement with regard to the 1988 fall had been executed by the parties in 1989, but it reflected only an injury to Banks' right hip.
(Footnote omitted).
In his notes of December 11, 1990, September 27, 1991 and October 1, 1991, Dr. Hopkins unequivocally opined that Banks' 1988 back surgery was precipitated by a new injury, i.e., the fall on the job in 1988, which caused a new disc herniation. Dr. Hopkins' records and opinions contained therein provide credible evidence to support the commission's finding that Banks failed to meet his burden of proving that his 1988 surgery and subsequent medical expenses were related to his compensable 1982 back injury.
For the reasons stated, we affirm the commission's decision.
Affirmed.