Opinion
Record No. 0009-93-1
August 3, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Gerard E. W. Voyer; Taylor Walker, on brief), for appellants.
(Robert J. Macbeth, Jr.; Rutter Montagna, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert Gay Construction Company contends that the commission erred in finding that Sylvester Tyus met his burden of proving that he was totally disabled from October 23, 1991, onward as a result of his compensable industrial accident of June 26, 1991. 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 June 26, 1991, Tyus was struck across the right ear with a crowbar wielded by a fellow employee. The employer accepted liability for injury by accident and disfigurement, but contested liability for incapacity after October 23, 1991. Immediately after his injury, Tyus was treated for a complex laceration of the right ear at a hospital emergency room. He was referred to Dr. Frank A. Schuler, who performed plastic surgery. In his deposition, Dr. Schuler stated that, in addition to his right ear injury, Tyus sustained a contusion behind the ear. Tyus returned to work on July 8, 1991.
Tyus testified that, beginning in August 1991, he had increased and continuing headaches. On October 23, 1991, Tyus was examined by Dr. Philip Mintz for complaints of severe headaches, memory loss, and throbbing pain in his right ear. Dr. Mintz indicated that Tyus was indefinitely disabled due to his injury and referred Tyus to Dr. Robert A. Segal, a neurologist.
When Dr. Segal saw Tyus, Tyus complained of severe headaches attributed to the injury of June 26, 1991. Dr. Segal opined that Tyus suffers from post-traumatic headaches which appear to be directly related to the injury. Dr. Segal also stated that an MRI revealed an area of old hemorrhage in Tyus' anterior thalamus which was probably related to the head trauma of June 26, 1991. In a March 19, 1992 letter to the commission, Dr. Segal indicated that Tyus was disabled from November 6, 1991 forward due to uncontrolled headaches as a result of his injury of June 26, 1991.
The commission's determination as to whether a claimant's disability is causally related to a compensable condition is a finding of fact, which is binding on review if supported by credible evidence. Volvo White Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). On review, we view the evidence in the light most favorable to Tyus, the prevailing party before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
The commission held that the evidence preponderated in establishing that Tyus was disabled beginning October 23, 1991 and continuing and that his disability was causally related to his injury. Drs. Mintz and Segal causally related Tyus' medical problems and disability to the trauma to his head which he sustained on June 26, 1991. "It lies within the commission's authority to determine the facts and the weight of the evidence, and its findings in that regard, when supported by credible evidence, will not be disturbed on appeal." Rose v. Red's Hitch Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990) (citations omitted). The doctor's testimony and reports provide credible evidence to support the commission's decision.
The commission recognized that both physicians indicated that they might change their opinions if it were established that Tyus suffered no headaches between June 26, 1991 and October 23, 1991. The medical records revealed, however, that Tyus experienced headaches and dizziness on July 1, 1991, four days after his accident. Tyus and his wife testified that although he initially had headaches, they subsided, but then returned in late August or September 1991. Therefore, the factual assumption contained in the hypothetical given to the doctors does not apply to the evidence in this case. In addition, the commission also found that neither physician indicated he would definitely change his opinion on the causation question.
Accordingly, the commission's findings as to causation and disability are supported by the opinions of Drs. Mintz and Segal, the medical records, and the testimony of Tyus and his wife. For these reasons, we affirm the commission's decision.
Affirmed.