Opinion
Record No. 1311-93-2
November 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Mark Anthony Johnson, pro se, on brief).
(Cecil H. Creasey, Jr.; Barbara J. Balogh; Sands, Anderson, Marks Miller, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray.
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.
Mark Anthony Johnson (claimant) contends that (1) the commission overlooked his doctors' reports; (2) he has new evidence regarding his May 18, 1991 injury; (3) certain testimony given at the hearing was incorrect; and (4) he proved he made an effort to find light work. The commission denied compensation on the grounds that claimant failed to prove (1) that he sustained a compensable "injury by accident;" and (2) the necessary causal connection between his neck condition and his alleged industrial accident of May 18, 1992. We need only address the causal connection issue to dispose of this appeal.
Presumably, the new evidence referred to by claimant is the May 6, 1993 letter from Dr. Carmelino L. Galang. This letter was not a part of the record before the deputy commissioner nor did claimant move to have it considered by the full commission. Thus, it will not be considered for the first time on appeal.
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). "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). Unless we can say as a matter of law that claimant's evidence was sufficient to sustain his burden of proof, 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).
In its June 16, 1993 review opinion affirming the deputy commissioner's decision, the full commission found that:
The claimant has clearly suffered from ongoing neck symptoms since his injury of January 29, 1990. No accident was reported to his employer immediately after the exacerbation of his symptoms on May 18, 1992. Rather, the claimant reported continuing neck pain. Medical treatment by [chiropractor] Dr. DeRegibus the same day did not indicate a new injury at work. The treating orthopedic surgeon and the treating chiropractor both appear to attribute his neck symptoms to the prior automobile accident [which was unrelated to his employment].
The medical records support the commission's finding regarding causation. Specifically, Dr. Ronald L. Haney's records from March 1990 through March 1991 reflect that claimant continuously suffered from cervical pain and stiffness due to the January 29, 1990 automobile accident. Dr. William E. DeRegibus' records from July 1991 through October 1991 indicate that claimant continued to suffer from cervical pain due to the automobile accident. In a June 5, 1992 Attending Physician's report, Dr. Deregibus indicated that claimant's current neck condition was caused by the January 1990 automobile accident, with the date of his last treatment as May 18, 1992. In this report, Dr. DeRegibus did not relate that claimant sustained any new industrial injury.
In June 1992, claimant began medical treatment with Dr. Galang. As with all of claimant's previous physicians, Dr. Galang diagnosed claimant as suffering from a cervical strain. In his records, Dr. Galang did not relate any new objective findings which would support a new injury occurring on May 18, 1992, nor does he provide any clear opinion regarding causation.
Because the medical records provide credible evidence to support the commission's finding that claimant failed to meet his burden of proving the requisite causal connection, we cannot say that the commission erred as a matter of law.
Accordingly, we affirm the commission's decision.
Affirmed.