Opinion
Record No. 0227-93-1
August 10, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Melvin Friedman, on brief), for appellant.
(William C. Walker; Taylor Walker, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The sole issue on this appeal is whether the commission erred in finding that Norman D. Casteel's back injury, which necessitated medical treatment and surgery performed by Dr. Robert S. Supinski, was not causally related to his industrial accident of December 13, 1989. 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.
On December 13, 1989, Casteel was injured when he slipped and fell while carrying a steel beam at a jobsite while in the course of his employment as a manual laborer for W.M. Jordan Company, Inc. Casteel was examined on December 13, 1989 at Patient First, and he complained of pain between the shoulder blade area. On December 22, 1989, he returned to Patient First complaining of soreness in the mid-thoracic area and some pain in the lumbar spine area. He was then referred to Dr. John A. Williamson, an orthopedic surgeon.
Casteel was examined by Dr. Williamson on one occasion on January 3, 1990. Casteel did not complain of any lower back pain during this examination. However, he did complain of pain in the mid-thoracic region with some shortness of breath. Dr. Williamson started Casteel on a course of physical therapy. Casteel first mentioned lower back pain to the physical therapist on January 22, 1990. At that time, the physical therapist noted that Casteel was pain free at the thoracic level.
On January 22, 1990, Casteel was examined by Dr. Peter C. Jacobson, Dr. Williamson's partner. Casteel complained of lower back pain and Dr. Jacobson ordered that x-rays of Casteel's lumbar spine be taken. Casteel never returned to Dr. Williamson or Dr. Jacobson after January 22, 1990.
In deposition, Dr. Williamson testified that the x-rays of Casteel's lumbar spine showed degenerative disc disease with bone spurs forming in back of the L-4 and L-5 vertebrae. He opined that these were not acute conditions and had been there for a long time. Dr. Williamson also opined that the onset of lower back pain several weeks after a significant injury, such as Casteel's injury to the thoracic region, would most likely be unrelated to the original injury.
Casteel left Virginia and went to live in Pennsylvania in February or March 1990. He did not seek further medical treatment until September 4, 1991, when he was examined by Dr. Robert S. Supinski, an orthopedic surgeon. Dr. Supinski reported in a November 29, 1991 letter to Casteel's counsel that a myelogram and CT scan showed diffusely bulging discs at L4-5 and a herniated disc at L5-S1. Dr. Supinski stated that the L4-5 disc was causing a condition known as spinal stenosis because of the size of the bulge and the herniated disc was putting direct pressure on the nerve root.
On November 7, 1991, Casteel underwent a laminectomy and discectomy at L4-5 and L5-S1 with posterior fusion. Dr. Supinski reported that during the surgery he found a large bone spur adjacent to the disc at L5-S1 indicating that the irritation to that level had been present for a long time. In the November 29, 1991 letter, Dr. Supinski stated:
Dr. Williamson testified in deposition that the bone spur referred to in Dr. Supinski's November 29, 1991 letter appeared to be the same bone spur that Dr. Williamson saw on Casteel's lumbar spine x-rays taken in January 1990.
If, in fact, [Casteel's] symptoms began and continued throughout time starting with the injury when he slipped, then it is my opinion based upon reasonable medical certainty that the work injury of December 3, 1989, was the cause of his pain, disability, and necessitated his surgery.
Dr. Supinski also qualified his opinion by stating that he would want to obtain all of Casteel's medical records, including the physical therapy notes, in order to determine whether it was documented that Casteel did in fact have residual symptoms.
In reversing the deputy commissioner and finding that the medical evidence failed to prove causation, the full commission relied on the medical records, testimony and opinions of Dr. Williamson and rejected the opinion of Dr. Supinski. The commission was entitled to make such a determination. Dr. Williamson's records and testimony provide credible evidence to support the commission's finding. "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).
The commission pointed out that there is no record of medical treatment between January 22, 1990 and September 4, 1991. Moreover, Dr. Supinski's opinion as to causation was based upon an assumption that Casteel's symptom of low back pain began at the time of the injury and continued. The medical evidence in the record does not support such an assumption; therefore, the commission properly discounted Dr. Supinski's opinion. Since we cannot say that Casteel's evidence was sufficient to sustain his burden of proof as a matter of law, the commission's finding is binding and conclusive upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
For the reasons stated, we affirm the commission's decision.
Affirmed.