Opinion
Record No. 0243-94-4
Decided: June 14, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(James E. Swiger; Swiger Cay, on brief), for appellant. Appellant submitting on brief.
(William W. Sharp, on brief), for appellee. Appellee submitting on brief.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Debra C. Mullins appeals a decision of the Workers' Compensation Commission denying her benefits for disability commencing October 1, 1992. Mullins contends that the commission erred in finding that she failed to prove that her back condition and resulting disability and surgery were causally related to her September 3, 1992, industrial accident. Finding no error, we affirm the commission's decision.
On appellate review, we must 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 was sufficient to sustain her 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).
Upon reviewing the medical records of Dr. John Bucur, and the testimony of all of the witnesses, the commission found that claimant failed to meet her burden of proving that her back condition was causally related to the September 3, 1992, accident. In doing so the commission stated:
. . . While the claimant testified to back pain and numbness which continued, she did not seek medical treatment until a full four months after the accident. Moreover, she was able to work and dance periodically during the month following the accident, and did not leave her job due to medical problems. Though the claimant stated that she restricted her lifting following the accident, co-workers recalled that she did not lift beer before the accident and that she had previously mentioned her back problems.
Furthermore, while Dr. Bucur relates the claimant's problems to her accident, it appears he was unaware of the claimant's work and recreational activities after September 3, 1992. We cannot find that Dr. Bucur's statements alone establish that the September 3, 1992 accident caused her back problems.
The commission, in its role as fact finder, was entitled to determine what weight, if any, was to be given to Dr. Bucur's opinion. "It lies within the commission's authority to determine the facts and the weight of the evidence, and its findings in that regard, when supported by credible evidence, will not be disturbed on appeal." Rose v. Red's Hitch Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990).
Dr. Bucur's statement in the Attending Physician's Report that claimant's condition was caused by the accident was based entirely upon the history given to him by claimant. Dr. Bucur's opinion was based upon the faulty premise that claimant attempted to work for one month, but was terminated due to medical problems related to her back condition. However, the record reflects that claimant was terminated on October 1, 1992, due to poor job performance. The testimony of claimant's co-workers indicated that claimant had suffered from severe back pain during her employment prior to the September 3, 1992, accident. In addition, claimant was observed by her co-workers dancing on numerous occasions in the months following the September 3, 1992, accident. This activity involved extensive bending and twisting. There is nothing in the medical records to indicate that Dr. Bucur was ever made aware of these facts.
Credible evidence, including the testimony of claimant's supervisor and her co-workers, indicates that the history upon which Dr. Bucur based his opinion was incomplete and inaccurate. Thus, the commission was entitled to conclude that Dr. Bucur's opinion was of little probative value. See Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d 15, 16 (1985). Accordingly, we cannot say as a matter of law that the commission erred in disregarding his opinion and finding that claimant failed to establish a causal link between her back condition and the September 3, 1992, industrial accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.