Opinion
Record No. 2368-93-4
Decided: May 10, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Peter M. Sweeny, on brief), for appellant.
(Francis G. Marrin, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Charles Scroggins, Jr. (claimant) contends that the Workers' Compensation Commission erred in finding that his herniated L5-S1 disc was not causally related to his September 26, 1991 compensable industrial accident. 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. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
"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 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).
"General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.' " Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987).
Furthermore, "it is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review. A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). "Medical evidence is not necessarily conclusive, but is subject to the commission's consideration and weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991). Unless we can say, as a matter of law, that claimant's evidence was sufficient to meet 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).
In finding that claimant's herniated disc was not causally related to the September 26, 1991 accident, the full commission stated:
Dr. Byrd's conclusion regarding causation is not explained. In his history recorded prior to surgery, Dr. Byrd noted that the claimant began experiencing left leg numbness approximately one week after returning to work on February 10, 1992. Therefore, he apparently was aware of the absence of left leg symptoms before that date. Dr. Shaffer, however, provided a detailed explanation of his findings and the basis for his conclusion in a report of some five pages. He placed some emphasis on the fact that the claimant did not experience left leg symptoms until some time after he returned to work in February 1992. In addition, Dr. Shaffer while shoveling snow, while Dr. Byrd did not mention this incident. We find Dr. Shaffer's conclusions the more persuasive. . . .
While we have stated that the opinion of the treating physician is entitled to great weight, Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986), the law does not require that the treating physician's opinion be accepted over that of others. Accordingly, the commission was free to accept the opinion of Dr. Shaffer over that of Dr. Byrd. Dr. Shaffer's opinion constitutes credible evidence to support the commission's finding regarding causation.
For the reasons stated, we affirm the commission's decision.
Affirmed.