Opinion
Record No. 0166-94-2
Decided: January 17, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gary R. Hershner (Morrissey Hershner, on brief), for appellant.
Sarah Y.M. Kirby (Mary Louise Kramer; Sands, Anderson, Marks Miller, on brief), for appellees.
Present: Chief Judge Moon, Judge Coleman and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
James R. Huffman appeals the full commission's decision affirming the deputy commissioner's finding that Huffman's medical treatment and disability were not causally related to Huffman's December 26, 1990 industrial accident. Because we cannot say that the evidence submitted by Huffman was sufficient to sustain as a matter of law his burden of proof, we affirm. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 836 (1970).
On appellate 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), and factual findings made by the commission will be upheld when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "Furthermore, the probative weight the commission gave the conflicting testimony is similarly within its province and not subject to our review." Birdsong Peanut Co. v. Cowling, 8 Va. App. 274, 279, 381 S.E.2d 24, 27-28 (1989) (citations omitted).
The record shows that Huffman suffered a stroke fourteen days after he experienced an industrial accident at his work place. The compensability of the accident was stipulated, leaving only the question of causation between the accident and Huffman's stroke in dispute.
We agree with the appellees in this case that the record contains credible evidence to support the opinion of the commission that Huffman's stroke was not causally related to his injury suffered at work. "The fact that there is 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). "In 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." Id. Therefore, we affirm the commission's finding that Huffman's medical treatment and disability were not causally related to Huffman's December 26, 1990 industrial accident.
Affirmed.