Portsmouth General Hospital v. Tammy Dobbs ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
PORTSMOUTH GENERAL HOSPITAL AND
BON SECOURS HEALTH SYSTEM, INC./
PMA MANAGEMENT CORPORATION
MEMORANDUM OPINION*
v. Record No. 0682-99-1 PER CURIAM
SEPTEMBER 7, 1999
TAMMY JO DOBBS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Richard E. Garriott, Jr.; Clarke, Dolph,
Rapaport, Hardy & Hull, P.L.C., on brief),
for appellants.
(Jeffrey F. Brooke; M. Todd Gerber; Huff,
Poole & Mahoney, P.C., on brief), for
appellee.
Portsmouth General Hospital and its insurer (hereinafter
referred to as "employer") contend that the Workers’
Compensation Commission erred in finding that Tammy Jo Dobbs'
injuries were causally related to her March 29, 1997 injury 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.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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).
In ruling that Dobbs met her burden of proof, the
commission found as follows:
Dr. [Frederick] Jordan found [Dobbs']
problem consistent with the March 1997,
accident. He immediately referred [her] to
Dr. [J.C.P.] Collier. The report of Harry
Poland, physician assistant, refers to
[Dobbs'] original injury and a continuation
of slight ongoing problems. This report and
that of Dr. Jordan, contradict the September
16, 1997, report of Dr. [Glenn J.] Jakobsen
indicating that [Dobbs'] pain had resolved
on its own, and that she only began having
pain again approximately three weeks
earlier. [Dr. Jakobsen's] report notes
[Dobbs] recalled a slip and fall at that
time, but she was uncertain whether this was
a precipitating event. We note that Dr.
Jakobsen diagnosed myofascial pain syndrome,
and not the ultimate problem of a herniated
disc. Dr. [Anthony] Cetrone's February 17,
1998, letter indicates that it was unclear
that [Dobbs'] symptoms resulted from the
fall and that it was probably represented
probably more of a myofascititis. However,
ultimately Dr. Collier and Dr. [Mark B.]
Kerner diagnosed a herniated disc. Dr.
Kerner has indicated both in November [1997]
letter and in his deposition that based on
his history and evaluation [Dobbs']
condition was a result of the March
accident. While [Dr. Kerner] acknowledged
that if [Dobbs] suffered a fall in August
that could be the cause of her condition, we
find that the record does not support an
August fall. We note that the deputy
commissioner had an opportunity to observe
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the witness and found [Dobbs] to be
credible, as did Dr. Kerner. We therefore
find the opinion of Dr. Kerner, the treating
physician, outweighs that of Dr. Jakobsen
and Dr. Cetrone who examined [Dobbs] on a
limited basis and failed to diagnose a
herniated disc.
"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). In its role as fact finder, the
commission was entitled to weigh the medical evidence. The
commission did so and accepted the opinion of the treating
physician, Dr. Kerner, while rejecting the contrary opinions of
Drs. Jakobsen and Cetrone. "Questions raised by conflicting
medical opinions must be decided by the commission." Penley v.
Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236
(1989).
Dr. Kerner's opinion and Dobbs' testimony constitute
credible evidence supporting 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).
For these reasons, we affirm the commission's decision.
Affirmed.
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