Opinion
Record No. 0755-93-2
September 14, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Emmett J. Jafari, pro se, on briefs).
(Stephen D. Rosenthal, Attorney General; Gail Starling Marshall, Deputy Attorney General; William H. Hauser, Senior Assistant Attorney General; James P. Wheeler, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
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. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Emmett J. Jafari contends that the commission erred in (1) denying him compensation based upon his failure to prove the requisite causal connection between his injury and physical problems; (2) not holding the employer liable for the negligence of its physician; and (3) issuing an opinion not supported by sufficient and credible evidence.
Jafari sustained a lumbar strain on June 20, 1991 while at work in the course of his employment for Beaumont Learning Center. The employer accepted the injury as compensable and Jafari received compensation at various times. Jafari then filed a change in condition application on April 8, 1992, alleging temporary total disability commencing on March 9, 1992. Jafari's treating physician for the June 1991 injury was Dr. William D. Henceroth, II.
On March 14, 1992, Dr. Henceroth clearly and unequivocally opined that Jafari's recurrent lower back symptoms were the result of his degenerative disc disease at L5-S1, as demonstrated by the MRI obtained of Jafari's lumbar spine on or about March 3, 1992. On March 31, 1992, Dr. Henceroth opined that Jafari had recovered from the lumbar strain he had sustained at work on June 20, 1991 and that his continued low back complaints were the result of a degenerative disc at L5-S1 and not a work-related problem. Dr. Henceroth's opinion is not disputed nor contradicted by any other medical evidence in the record.
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). "General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence." Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted). Unless we can say as a matter of law that Jafari's evidence was sufficient to meet 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).
The commission found that Jafari failed to present evidence to demonstrate that his back problems continuing from March 1992 forward were connected to his compensable injury of June 20, 1991. The commission's finding is supported by credible medical evidence, including the undisputed opinion of Dr. Henceroth, and thus, it will not be disturbed on appeal. Dr. Henceroth's reports clearly indicate that Jafari's current problems do not stem from the lumbar strain he sustained in June 1991, but rather flow from his degenerative disc disease. There is no medical evidence to support a finding that Jafari sustained a lumbar disc injury as a result of the June 20, 1991 incident. In fact, Jafari began having the disc problem when he was treated by Dr. Kim E. Marsh in 1987 for an injury he sustained while in the employ of United Parcel Service.
Jafari's complaints regarding his treatment by Dr. Henceroth are not substantiated by evidence in the record and do not provide any basis upon which to reverse the commission's decision.
Jafari also makes reference to a discussion which occurred on the day of the hearing between the employer's counsel and the deputy commissioner in which Jafari was not invited to participate. We find no evidence in the record as to whether such a discussion occurred or as to whether it had any bearing on the outcome of the case. Accordingly, Jafari's allegation in this regard provides no basis upon which to disturb the commission's decision.
For the reasons stated, we affirm the commission's decision.
Affirmed.