Opinion
Record No. 0001-93-1
August 10, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Keith Loren Kimball; Sykes, Carnes, Bourdon, Ahern Shapiro, on brief), for appellant.
(Sarah Y. M. Kirby; 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.
The sole issue on this appeal is whether the commission erred in finding that Charles Edgar Lester ("Lester") failed to prove that his back injury and subsequent medical treatment were caused by his industrial accident of November 15, 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 ("commission"). Rule 5A:27.
"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). On appeal, 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). Unless we can say as a matter of law that Lester's evidence was sufficient to sustain 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).
Lester has been employed as an automobile salesman by Performance Buick Pontiac, Inc. ("Performance Buick") since September 1991. Lester stated that on November 15, 1991, he injured his lower back while demonstrating the use of a jack to one of his customers, William Pittman. Lester testified that when he went to pull the jack free, it came out suddenly, and he felt a sharp pain in his back. Pittman testified, however, that when Lester assisted him with the jack, he made no mention of hurting his back and walked away normally to help another customer.
After the November 15, 1991 incident, Lester continued to work for three more weeks. During this time, he brought ice packs to work and placed them on his lower back. On December 10th or 11th, 1991, Lester was in his office and bent over to get a form out of his desk drawer when he experienced severe pain in his lower back. He immediately sought medical attention.
The medical records reveal that Lester had been treated by a chiropractor, Dr. Catherine Sears, since March 5, 1990 for lower back pain which had begun a year earlier. Dr. Sears' treatment involved the L4 and L5 areas of the back. On October 28, 1991, Lester returned to Dr. Sears complaining of low back pain that had developed over two weeks. It was noted that one week before this visit Lester had lifted an organ. On November 30, 1991, Lester was treated by Dr. Sears. However, Lester made no mention of the November 15, 1991 jack incident to Dr. Sears, although Dr. Sears did note lower back pain.
When Lester began treatment with Dr. W. Donald Floyd on December 11, 1991, he told Dr. Floyd of the November 15, 1991 and December 10, 1991 incidents. However, Lester inaccurately told Dr. Floyd that he had been treated by Dr. Sears in 1990 and 1991 solely for problems related to his neck. Dr. Floyd diagnosed a lumbar spine strain.
Lester began treatment with neurosurgeon Alfred Magness on December 23, 1991. He told Dr. Magness that his pain "began on December 10, 1991 when he was leaning over to pick up a paper. There is no history of injury or accident otherwise." Dr. Magness ordered an MRI which revealed a ruptured disc at the L4-5 level. Dr. Magness performed disc surgery on Lester on January 14, 1992.
The Louise Obici Memorial Hospital admitting note of January 14, 1992 relates that Lester's pain began when he was leaning over to pick up a paper. The hospital discharge summary relates that Lester developed back pain in November 1991 which resolved. Additionally, Dr. James Holleran's January 14, 1992 hospital consultation notes state that Lester noted some back pain in November 1991 while jacking up a car, which resolved itself before he noted back pain again in December 1991.
The commission found that even if it were to conclude that some activity necessitated by the work that Lester was required to perform on November 15, 1991 resulted in some injury, the medical records reflect that by the time he felt pain again on December 10, 1991, his pain from the November 15, 1991 incident had resolved. This finding is clearly supported by the medical records of Dr. Magness, Dr. Holleran and the hospital. Lester admits that the December 1991 incident does not constitute an accident arising out of his employment. See Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). Thus, any medical treatment or disability caused by the December 1991 event is not compensable.
Accordingly, we cannot say that the commission erred in finding that Lester failed to prove by a preponderance of the evidence that his back injury and subsequent medical treatment from December 11, 1991 onward were in any way causally related to the accident of November 15, 1991.
For the reasons stated, we affirm the commission's decision.
Affirmed.