Tidewater Construction Corporation v. C. Burney ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
TIDEWATER CONSTRUCTION CORPORATION
MEMORANDUM OPINION *
v. Record No. 1415-97-2 PER CURIAM
OCTOBER 7, 1997
CARLTON BURNEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Henry P. Bouffard; Vandeventer, Black,
Meredith & Martin, on brief), for appellant.
(Laura Ann McDonald, on brief), for appellee.
Tidewater Construction Corporation (employer) contends that
the Workers' Compensation Commission erred in finding that
Carlton Burney's post-September 1995 disability was causally
related to his October 30, 1992 compensable left ankle injury.
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. 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.
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).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In awarding Burney compensation benefits, the commission
found as follows:
Based on this medical evidence, we find that
[Burney] has sufficiently proved a causal
connection between the industrial injury and
his persistent disabling condition. No
physician has contradicted Dr. [Earl] White's
September, 1994 opinion that [Burney's]
injury aggravated his arthritis and caused
continuing symptoms. There is no evidence of
complaints prior to the work accident. We
therefore find [Burney] has remained
partially disabled as a result of the
industrial injury.
Dr. White's September 13, 1994 opinion and medical records
provide credible evidence to support the commission's findings.
Therefore, those findings are binding and conclusive upon us on
appeal. "In 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." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Moreover, "'the employer takes the employee as he is and if the
employee is suffering some physical infirmity, which is
aggravated by an industrial accident, the employer is responsible
for the end result of such accident.'" McDaniel v. Colonial
Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986)
(citation omitted).
We also note that employer's reliance upon Dr. Richard
Holden's April 10, 1995 examination and subsequent findings is
misplaced. Dr. Holden did not render any opinion on April 10,
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1995 with respect to the cause of Burney's continuing symptoms
and disability.
For these reasons, we affirm the commission's decision.
Affirmed.
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