Opinion
Record No. 1059-94-3
Decided: January 31, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John Gregory, Jr.; A. Kristin Shandor, on brief), for.
(John C. Johnson; Monica L. Taylor; Gentry, Locke, Rakes Moore, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Harold Locklear (claimant) contends that the Workers' Compensation Commission erred in (1) finding that he failed to prove that his cervical condition was caused by his December 10, 1991 industrial accident; and (2) failing to remand the case to the deputy commissioner for a finding on the issue of causation. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
Pursuant to Rule 5A:21(b), employer raises an additional question for our consideration. Employer contends on appeal that the commission erred in finding that Locklear did not commit willful misconduct. However, because we find the causation issue to be dispositive in this case, we decline to address employer's question presented.
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). Unless we can say as a matter of law that claimant's evidence sustained his burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On December 10, 1991, claimant was struck in the face with a "chuck key," as he was operating a pipe threading machine, while working for Servitex/National Distributing Company ("employer").
On December 10 and 23, 1991, claimant received treatment for his facial injuries. Claimant did not make any complaints of cervical pain on these dates. He continued to work until March 10, 1992.
It was not until March 9, 1992, that claimant first complained of neck and shoulder pain, when he was seen in the emergency room of a local hospital by Dr. T. Gary Parrish. However, claimant did not mention his December 10, 1991 accident to hospital personnel nor did he provide any history of trauma. He told the hospital personnel that his symptoms started approximately three weeks before, or in mid-February, nine weeks after his accident.
On March 12, 1992, claimant told Dr. Preston A. Waldrop, an orthopedic surgeon, that his right shoulder and upper extremity pain began six months earlier and gradually worsened, dating his symptoms back to mid-October, approximately two months before his accident.
On March 19, 1992, claimant told Dr. Edward Waybright, a neurologist, that his symptoms began in mid-January 1992.
Claimant did not relate his December 10, 1991, accident to any of these physicians nor did they record a history of facial trauma. None of these physicians causally related claimant's cervical pain to his December 10, 1991, industrial accident. The lack of any medical evidence from these physicians connecting claimant's cervical pain to his industrial accident supports the commission's finding that he failed to sustain his burden of proving causation.
The commission, in its role as fact finder, was entitled to reject the opinion of Dr. Murray E. Joiner, Jr., a physiatrist. In his April 24, 1992, office notes, Dr. Joiner could only state that claimant's industrial injury was "a definite possibility" as the cause of his cervical condition. At that time, Dr. Joiner did not give an opinion to a reasonable degree of medical certainty. Later, on June 14, 1992, Dr. Joiner opined that claimant's accident was the cause of his cervical pain resulting in surgery and disability. However, considering claimant's inability to give a consistent history to Drs. Parrish, Waldrop, and Waybright, claimant's extensive history of pre-December 10, 1991, neck trauma, and Dr. Joiner's initial inability to render an opinion to a reasonable degree of medical certainty, the commission was entitled to give little weight to his June 14, 1992, opinion.
Based upon the lack of credible medical evidence to establish a causal link between claimant's industrial accident and his cervical pain, we cannot say as a matter of law that his evidence sustained his burden of proof. Claimant's contention that the commission should have remanded this case to the deputy commissioner is without merit.
Accordingly, we affirm the commission's decision.
Affirmed.