Opinion
Record No. 1970-93-2
April 26, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ann Bridgeforth Tribbey, on brief), for appellant.
(Catherine A. Lee; McGuire, Woods, Battle Boothe, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
William A. Moore, Jr. (claimant) contends that the Workers' Compensation Commission (commission) erred in finding that claimant failed to prove that his back and neck problems were causally related to his July 24, 1991 compensable injury by accident.
Claimant did not contend before the commission that employer was responsible for his injuries on the basis that Dr. Cardea's alleged negligence in treating him caused exacerbations of his original injury, nor did he contend that the work-related accident aggravated a pre-existing condition. Accordingly, we decline to address these arguments on appeal. Rule 5A:18; see also Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
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 commission. Rule 5A:27.
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 Company, Inc., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In its August 30, 1993 review opinion affirming the deputy commissioner's decision, the full commission found that:
As to the causal relationship between the claimant's back and neck injuries and his injury by accident, we find it significant that Dr. [John A.] Cardea found it difficult to relate these symptoms to his injury by accident given the length of time that passed between the injury and the complaint of neck pain made on September 17, 1991. While the claimant complained of neck and back pain at the time of his emergency room visit on July 24, 1991, x-ray studies were negative and he was found to simply be suffering from multiple contusions. Moreover, the claimant has suffered two prior neck and back injuries. Neither of these injuries were mentioned by him to his physicians. Therefore, Dr. [R.K.] Marshall's finding that these symptoms were related to his injury is not persuasive as it is based on an incomplete medical history. Clinchfield Coal Co. v. Bowman, 229 Va. 249, 329 S.E.2d 15 (1985).
The medical records support the commission's finding regarding causation. Dr. Cardea, claimant's treating physician, clearly indicated that he would find it difficult to give an opinion as to a causal connection due to the lapse in time between the accident and claimant's neck and back complaints. X-rays of claimant's back and neck taken in the hospital immediately following his accident were normal. Other than Dr. Marshall's opinion, there is no affirmative medical opinion in the record that claimant's neck and back injuries were caused by his compensable accident. In its role as fact finder, the commission was entitled to discount the opinion of the chiropractor, Dr. Marshall, in light of the inaccurate and incomplete history upon which his opinion was based. "Questions raised by conflicting medical opinions must be decided by the commission." Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989) (citing Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986)).
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.
For the reasons stated, we affirm the commission's decision.
Affirmed.