Food Lion, Inc. v. Ruby Jean Kennedy ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
FOOD LION, INC.
MEMORANDUM OPINION *
v. Record No. 1997-96-3 PER CURIAM
DECEMBER 30, 1996
RUBY JEAN KENNEDY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cathie W. Howard; Williams & Pierce, on
brief), for appellant.
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, on brief), for appellee.
Food Lion, Inc. (employer) appeals a decision of the
Workers' Compensation Commission (commission) holding employer
responsible for the cost of medical treatment rendered to Ruby
Jean Kennedy (claimant) by Dr. James Eden, a psychiatrist.
Employer contends that the commission erred in finding that Dr.
Eden's treatment was (1) authorized, (2) causally related to
claimant's compensable August 31, 1992 back injury, and (3)
necessary. Finding no error, we affirm the commission's
decision.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"Whether the employer is responsible for medical expenses . . .
depends upon: (1) whether the medical service was causally
related to the industrial injury; (2) whether such other medical
attention was necessary; and (3) whether the treating physician
made a referral to [sic] the patient." Volvo White Truck Corp.
v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
I.
In addressing whether claimant received a valid referral
from Dr. Timothy G. McGarry, her treating physician, to obtain
treatment from Dr. Eden, the commission found as follows:
The record indicates that the claimant
initially sought treatment with Dr. Eden
without benefit of a referral. She treated
with him on two occasions before Dr. McGarry
referred her.
In his office note of October 28, 1992,
Dr. McGarry recorded: "Per the patient's
request, I'd also like to refer her to Dr.
James Eden in Cedar Bluff for evaluation of
her nervous condition."
Dr. McGarry's office notes, as well as his October 28, 1992
letter to Dr. Eden, provide credible evidence to support the
commission's finding that Dr. McGarry made a valid referral of
claimant to Dr. Eden. We find no merit in employer's argument
that Dr. McGarry's referral was not valid because claimant had
previously sought unauthorized treatment from Dr. Eden on two
occasions.
II. and III.
In its role as fact finder, the commission was entitled to
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accept Dr. Eden's opinion that claimant's psychiatric condition
and treatment were necessary and were causally related to her
compensable August 31, 1992 back injury. Dr. Eden's opinion, his
medical records, and claimant's testimony provide credible
evidence to support the commission's decision. "The fact that
there is contrary evidence in the record is of no consequence if
there is credible evidence to support the commission's finding."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991). Moreover, "[i]n 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." Id.
For these reasons, we affirm the commission's decision.
Affirmed.
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