Joyce Ann Myers v. Anheuser Busch, Inc. ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
JOYCE ANN MYERS
MEMORANDUM OPINION*
v. Record No. 1428-99-1 PER CURIAM
NOVEMBER 23, 1999
ANHEUSER BUSCH, INC.,
ZURICH INSURANCE COMPANY AND
PACIFIC EMPLOYERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Stephen M. Smith; Joseph Smith, LTD., on
brief), for appellant.
(Steven H. Theisen; Midkiff & Hiner, P.C., on
brief), for appellees Anheuser Busch, Inc.
and Zurich Insurance Company.
(Bradford C. Jacob; Taylor & Walker, P.C.,
on brief), for appellees Anheuser Busch,
Inc. and Pacific Employers Insurance
Company.
Joyce Ann Myers (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove that certain medical expenses incurred by her
since 1996 were causally related to either her August 3, 1979 or
August 13, 1981 compensable injuries by accident. 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. See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
sustained her burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On appeal, claimant relies solely upon an October 21, 1997
letter from Dr. Louis U. Bigliani, an orthopedic surgeon, to
support her argument that the commission erred in finding that
she failed to prove that her medical treatment since 1996 for
her cervical spine problem was causally related to either her
August 1979 or August 1981 compensable work-related accidents.
In that letter, Dr. Bigliani stated as follows:
I have been asked to write to you on behalf
of my patient, Joyce Myers regarding the
history of her cervical spine problem. This
problem was diagnosed many years ago and
treatment was recommended by Dr. Weidenbaum
but did not occur. Mrs. Myters [sic] went
on to have continued bilateral scapula pain
for which surgery was performed to try and
give her some relief. It is possible that
the cervical spine problem did contribute to
the patients [sic] shoulder and scapula
problems as the two are often related.
The commission, as fact finder, was entitled to weigh the
medical evidence and to give little probative weight to Dr.
Bigliani's October 21, 1997 opinion. Dr. Bigliani did not
express his opinion regarding causation with any degree of
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reasonable probability or medical certainty. Rather, he merely
raised the "possibility" of a causal relationship. It is well
established that "[a] medical opinion based on a 'possibility'
is irrelevant [and] purely speculative." Spruill v.
Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980).
In light of the speculative nature of Dr. Bigliani's
opinion and the lack of any other persuasive medical evidence of
a causal connection, the commission was entitled to conclude
that the evidence failed to prove that the medical treatment at
issue was causally related to either of claimant's compensable
work-related accidents. "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, 215 (1991).
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that the evidence sustained claimant's burden of proof.
Accordingly, we affirm the commission's decision. 1
Affirmed.
1
We note that claimant's res judicata argument is without
merit and was properly rejected by the commission. The
commission's October 31, 1994 opinion established that
claimant's shoulder conditions were related to her 1981
compensable injury. However, that opinion did not involve the
specific issue before the commission and before this Court on
appeal as to whether the appellees could be held responsible for
specific medical expenses incurred by claimant in 1996 and 1997.
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