Opinion
Record No. 0427-93-4
September 21, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Margaret DeFilippis; Ashcraft and Gerel, on brief), for appellant.
(Francis G. Marrin; Law offices of Conrad A. Fontaine, on brief), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Harry Bret Shepard contends that the Workers' Compensation Commission erred in finding that (1) he failed to prove that his arthroscopic surgery and subsequent medical care were causally related to his injury by accident of January 9, 1991; and (2) the medical care he received from physicians in Texas and from Dr. Eng was unauthorized and not the responsibility of the employer. 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 before the commission. 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 Shepard's evidence was sufficient to sustain his burden of proof, then the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission found that Shepard's history of bilateral knee pain pre-existed his accident by several years. The commission also found that no evidence in the record supported a finding that the accident caused an aggravation of the pre-existing problem. Thus, the commission concluded that Shepard failed to prove that his arthroscopic surgery and subsequent medical treatment were causally connected to his accident.
Credible evidence proved that Shepard suffered injury by accident on January 9, 1991. Shepard reported pain in his right knee and admitted previous problems with that knee. Nothing in the records of Dr. Gregory M. Ford, the treating physician, or Dr. Dean Bennett, the orthopedic surgeon, supports Shepard's argument that the arthroscopic surgery and subsequent medical treatment that he received are related to his accident. Dr. Ford noted on February 20, 1991, that Shepard previously had pain in the right knee, and that this pain had worsened. Dr. Ford diagnosed a contusion of the right patella and chondromalacia of the right patella.
Dr. Bennett stated that Shepard's primary problem, erosion and wearing away of the cartilage surface in his knee, did not have a surgical solution and could have been caused by many different things. Dr. Bennett stated that Shepard's knee condition was caused by repetitive overuse and sports related injuries, such as those caused by hockey.
On October 31, 1991, Dr. Stephen Gunther, an orthopedic surgeon examined Shepard. Dr. Gunther noted that Shepard was a carpenter and an amateur hockey player. According to Dr. Gunther, Shepard told him of worsening knee pain proximate to and under the right patella during the previous four years. Shepard told Dr. Gunther that Dr. Ford had injected him two times in 1990. Dr. Gunther's records do not reflect that Shepard ever told him anything about the January, 1991 accident.
In summary, the medical evidence does not, as a matter of law, prove a causal connection between the injury of January 9, 1991, and the surgery or between the injury and an aggravation of a pre-existing problem. Accordingly, we may not disturb the commission's factual findings.
Since the causation issue is dispositive of this appeal, we do not address the remaining question presented. For the reasons stated, we affirm the commission's decision.
Affirmed.