From Casetext: Smarter Legal Research

Omni International v. Mccormick

Court of Appeals of Virginia
Jun 28, 1994
Record No. 2457-93-1 (Va. Ct. App. Jun. 28, 1994)

Opinion

Record No. 2457-93-1

Decided: June 28, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(William C. Walker; Donna White Kearney; Taylor Walker, on brief), for appellants.

(Halbert T. Dail, on brief), for appellee Arthur Thomas McCormick.

(Fay F. Spence; Gaidies, Young Spence, on brief), for appellee Employers Insurance Company of Wausau.

Present: Judges Barrow, Koontz and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Omni International Hotels and its insurer (hereinafter collectively referred to as "employer") contend that the Workers' Compensation Commission erred in finding that Arthur Thomas McCormick's ("claimant") herniated right L1-L2 disc was causally related to his industrial accident of November 10, 1991. 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. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.

The commission's finding that claimant sustained a compensable injury by accident on November 10, 1991 has not been appealed. Thus, this ruling is final as to the parties. We also note that the commission's findings that claimant did not establish a compensable injury by accident on February 20, 1992 or April 22, 1992, have not been appealed. Accordingly, these rulings have also become final.

On appellate review, we construe the evidence in the light most favorable to the parties 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).

On November 10, 1991, claimant, a carpenter, was working from a ladder and installing crown molding in an office. In the course of this work, claimant lost his balance and fell from the ladder, landing on his feet. He felt immediate sharp, intense pain in his lower back. The next day claimant began receiving medical treatment from Dr. Frank Westmeyer, who diagnosed a lumbosacral sprain. Claimant continued to receive medical treatment from Dr. Westmeyer through January 14, 1992. As of January 14, 1992, claimant was released to return to his regular work. However, Dr. Westmeyer noted at that time that claimant still had some stiffness and muscular soreness in his back.

Employer refers to claimant's deposition on numerous occasions in its opening brief. However, claimant's deposition was not made a part of the record at the hearing, and thus, was not considered by the commission in rendering its decision. Accordingly, we will not consider the deposition on appeal.

On February 24, 1992, claimant returned to Dr. Westmeyer, stating that he had exacerbated his low back pain approximately one week earlier which began while working in a squatting position. Due to claimant's complaints of radicular pain, Dr. Westmeyer referred him to a neurosurgeon, Dr. David C. Waters. An MRI performed on February 28, 1992 revealed that claimant suffered from a large disc herniation on the left side, at the L4-L5 level, and a disc herniation on the right side, at the L1-L2 level. On March 10, 1992, claimant was no longer experiencing symptoms, and Dr. Waters released him to return to work.

On April 23, 1992, claimant returned to Dr. Waters after exacerbating his back pain at work the previous day. He complained of lower back pain on his right side which radiated into his groin. After claimant failed to respond to conservative treatment, Dr. Waters performed a right L1-L2 discectomy. On May 5, 1992, Dr. Waters opined that claimant's disc herniation was a work-related injury; however, he did not specifically identify when the injury occurred.

At the hearing, claimant testified that he continued to suffer from pain in his lower back and groin area intermittently from the time of the November 10, 1991 accident up until February 1992, when the herniated disc was diagnosed.

The commission found that claimant met his burden of establishing the existence of a causal connection between the November 10, 1991 fall and the disabling herniated disc. In doing so, the commission relied upon claimant's testimony that he continued to suffer lower back pain after the fall on November 10, 1991, and that these symptoms radiated into the groin area. Dr. Waters opined that this type of radiating pain would be caused by an injured lumbar disc.

Claimant's testimony, and the medical records taken as a whole, provide credible evidence to support the commission's finding. In its role as fact finder, the commission was entitled to accept claimant's unrebutted testimony, even though it was not specifically corroborated by the medical records. "In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

Omni International v. Mccormick

Court of Appeals of Virginia
Jun 28, 1994
Record No. 2457-93-1 (Va. Ct. App. Jun. 28, 1994)
Case details for

Omni International v. Mccormick

Case Details

Full title:OMNI INTERNATIONAL HOTELS and LIBERTY MUTUAL INSURANCE COMPANY v. ARTHUR…

Court:Court of Appeals of Virginia

Date published: Jun 28, 1994

Citations

Record No. 2457-93-1 (Va. Ct. App. Jun. 28, 1994)