Opinion
Record No. 0864-92-3
April 20, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Thomas G. Bell, Jr. (Timberlake, Smith, Thomas Moses, P.C., on briefs), for appellants.
Thomas W. Dixon, Jr. (McPherson, Summers Santos, on brief), for appellee George F. Barcomb, Jr.
Bruce M. Steen (McGuire, Woods, Battle Boothe, on brief), for appellees Beverley Office Supply Equipment Company and Aetna Casualty and Surety Company.
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.
Beverley Office Supply Equipment Company (employer) and its former insurance carrier, Casualty Reciprocal Exchange (Casualty Reciprocal), appeal from a decision of the Workers' Compensation Commission (commission) finding that George F. Barcomb, Jr. (Barcomb), claimant, suffered a compensable change in condition from a prior back injury of July 18, 1988. On appeal, employer and Casualty Reciprocal contend that credible evidence does not support the commission's finding that the medical treatment Barcomb received after April 18, 1990, was causally related to his compensable accident of July 18, 1988. In response, Barcomb contends that the commission properly found that he suffered a compensable change in condition. Additionally, Barcomb contends the commission erred in finding that the April 18, 1990 incident was not a new injury by accident. For the reasons that follow, we affirm the decision of the commission.
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. Barcomb worked for employer and its predecessor for over twenty-five years. Casualty Reciprocal carried employer's worker's compensation insurance from January 1, 1978 to January 1, 1989. Aetna Casualty and Surety Company (Aetna), an appellee in this matter, has provided the insurance coverage for employer from January 2, 1989 to the present.
On March 18, 1991, Barcomb filed a claim with the commission for compensation benefits. The claim stemmed from an incident that occurred on April 18, 1990, while Barcomb was delivering a desk in Staunton, Virginia. As Barcomb reached down for the desk, but before he touched it, he felt a "searing, burning pain" in his back. When Barcomb actually began lifting the furniture, his back completely "locked-up."
As part of the hearing on the matter, two previous files were made a part of the record. The first file concerns an accident of July 18, 1988, that was accepted as compensable by Casualty Reciprocal. The second file, which contains only the employer's first report of accident, concerns a low back injury in July 1989, during the period of coverage by Aetna.
At the hearing before the commission, employer, Casualty Reciprocal, and Aetna defended the action. The deputy commissioner denied Barcomb's application for compensation benefits. On appeal to the full commission, the issue was "whether [Barcomb's] evidence establishes a new back injury by industrial accident occurring on April 18, 1990, a change in condition from a prior back injury of July 18, 1988, or neither." The commission found that Barcomb had suffered a compensable change in condition rather than a new injury by accident on April 18, 1990. Consequently, Casualty Reciprocal was responsible for the claim.
Employer and Casualty Reciprocal contend that the commission erred in finding that Barcomb's medical treatment after April 18, 1990, was causally related to his compensable accident of July 18, 1988, and, therefore, was the responsibility of Casualty Reciprocal. The principles guiding our review of appellants' claim are well established:
On appeal, factual findings of the commission will not be disturbed if based on credible evidence. . . . Whether credible evidence exists to support a factual finding is a question of law which is properly reviewable on appeal. Causation is a factual determination to be made by the commission, but the standards required to prove causation and whether the evidence is sufficient to meet those standards are legal issues which we must determine. In considering whether credible evidence exists to support the necessary factual findings, we view the evidence in the light most favorable to the party prevailing below.
Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991) (citations omitted). Additionally, "[i]n determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
The record documents a series of complaints of back pain dating back to 1965. On July 18, 1988, Barcomb suffered an injury by accident while unloading furniture from a truck. Between July 22, 1988 and August 25, 1989, Barcomb sought medical treatment for back pain numerous times. Following the August 25, 1989 examination, Dr. H. Michael Hanna, Jr. reported an improvement in Barcomb's back symptoms and noted, "[Barcomb] continues to have trouble with [his back] and I think he is going to continue to have [the] same." There was no further treatment until April 19, 1990, when Barcomb returned to Dr. Jack S. Mask, who noted an exacerbation while Barcomb was lifting a desk.
We hold that credible evidence supports the commission's finding that Barcomb's condition on April 18, 1990 constituted a change in condition and, therefore, "[t]he fact that there is contrary evidence in the record is of no consequence."Wagner Enters., 12 Va. App. at 894, 407 S.E.2d at 35.
The evidence showed that Barcomb was reaching down to lift the desk, but, before he touched it, he felt a "searing, burning pain" in his back. At that point, by definition, there was no accident. See Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). Although Barcomb continued to try to lift the desk before his back completely "locked-up," the commission was justified in finding that it was more likely than not that Barcomb's injury was sustained before he picked up the desk and that Barcomb had not proved that picking up the desk constituted a new accidental injury separate from that which occurred when he bent over. See First Fed. Sav. Loan Ass'n v. Gryder, 9 Va. App. 60, 63, 383 S.E.2d 755, 757 (1989); Board of Supervisors v. Martin, 3 Va. App. 139, 141, 348 S.E.2d 540, 541 (1986).
We find that credible evidence supports the commission's conclusion that Barcomb's medical treatment after April 18, 1990 was causally related to his July 18, 1988 injury by accident. Accordingly, the commission's decision is affirmed.
Affirmed.