Wellmore Coal Corporation v. Dallas E. McClanahan ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
WELLMORE COAL CORPORATION
MEMORANDUM OPINION * BY
v. Record No. 1922-98-3 RUDOLPH BUMGARDNER, III
MARCH 16, 1999
DALLAS E. McCLANAHAN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
S. T. Mullins (Street, Street, Street, Scott &
Bowman, on brief), for appellant.
Frederick W. Harman for appellee.
Wellmore Coal Corporation appeals an award of benefits by
the Workers' Compensation Commission that reversed a denial of
benefits by a deputy commissioner. It contends the commission
erred in holding that the current condition was causally related
to the earlier industrial accident and in finding sufficient
evidence to support the award. Concluding that the commission
did not err, we affirm.
On appeal, we construe the evidence in the light most
favorable to the party prevailing below. See R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). The commission's findings of fact on the issue of
causation will be upheld if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The claimant suffered a compensable injury in March 1993.
By agreement, the commission awarded temporary total disability
payments for various periods between April 1993 and June 1996.
Throughout 1993, Dr. Jim Brasfield, a neurosurgeon, treated the
claimant and was the only medical expert during this entire case.
On June 14, 1994, the doctor performed a left L5-S1 partial
hemilaminectomy and diskectomy after which the claimant suffered
no pain for six to eight months.
The claimant returned to Dr. Brasfield in June 1995
complaining of increasing pain in his back and legs. From then
until June 1997 myelograms and CT scans were performed but no
herniation was detected. The claimant continued to work but
complained that his pain was increasing. A myelogram performed
on June 17, 1997 revealed herniation at the L5-S1 level. The
radiologist stated "the herniation is new" after comparing it
with an earlier myelogram.
In a July 7, 1997 note, Dr. Brasfield stated, "Patient
current complaints are related to 3-29-93 injury." Other notes
refer to the new herniation as a "recurrent L5 disc herniation."
The doctor noted that the claimant gave no history of a specific
injury, denied any specific recurrence of work injury or motor
vehicle injury and attributed the pain to his original injury.
The claimant's testimony corroborated the doctor's recorded
history. No evidence indicated that the claimant suffered any
subsequent identifiable injury, and the employer presented no
such evidence.
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In answer to a series of written interrogatories posed by
the employer, the doctor answered "yes" to a question asking
whether he agreed that it was just as probable the L5 disc
rupture was caused by cumulative or specific events at his new
employment as attributable to the 1993 work accident. The
employer emphasizes this answer when arguing that the commission
erred because that evidence makes it just as probable that the
earlier accident did not cause the new condition. We conclude
that the "just as probable" rule does not control because the
evidence was not just susceptible to that interpretation.
The commission held that there was sufficient evidence in
the record to prove that the 1993 injury caused the current
condition suffered by the claimant. It noted that the claimant's
symptoms were in the same locations as the symptoms from the
original injury, that his symptoms persisted to the present, and
that he remained under the same doctor's treatment since 1993.
Further, it noted the commission had awarded the claimant
temporary total disability awards through June 16, 1996, thereby
establishing the causal relationship at least through that date.
The commission considered the employer's reliance on Dr.
Brasfield's affirmative response to the question of whether it
was just as probable that claimant's injury was caused by
something other than the 1993 accident. However, it found the
doctor's admission unpersuasive when compared to the opinions
stated in his office notes. "[W]e find Dr. Brasfield's opinions
as stated in his office notes more persuasive than his answers to
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the employer's questionnaire." The commission considered
significant his answer to the preceding question in that
questionnaire. The doctor had written a full explanation and had
not simply answered "yes" or "no."
We will not substitute our judgment for that of the trier of
fact, which had an opportunity to observe the witnesses and
evaluate their credibility. See Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 382, 363 S.E.2d 433, 437 (1987), appeal
after remand, 9 Va. App. 120, 384 S.E.2d 333 (1989). "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). See 2B Arthur Larson, The Law of Workmen's Compensation
§ 79.51(a) (1995) (awards may be made when medical evidence is
inconsistent).
The fact that contrary evidence may appear 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). The claimant's
testimony that there was no other source of injury may be
considered to determine causation. See Dollar General Store v.
Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).
The employer presented no evidence of an intervening cause
including injury or accident while claimant worked elsewhere.
Nor did it present any medical evidence to challenge Dr.
Brasfield's opinion that the current condition was causally
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related to the industrial accident. Mere possibility alone that
there was an intervening injury is insufficient to rebut
claimant's proof. Cf. Eccon Company v. Lucas, 221 Va. 786, 791,
273 S.E.2d 797, 799 (1981) ("possibility is not enough" when
proving causation). Dr. Brasfield's notes, reports, and
testimony are sufficient to establish a causal connection between
the claimant's current problem and the prior injury.
Accordingly, we affirm the commission's finding that the
claimant proved causation between his current problem and his
earlier injury.
Affirmed.
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