County of York Fire & Rescue/VA Municipal v. Dinse ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
COUNTY OF YORK FIRE & RESCUE and
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION *
PER CURIAM
v. Record No. 0879-97-4 SEPTEMBER 9, 1997
DONALD M. DINSE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Daniel G. Bloor; Midkiff & Hiner, on brief),
for appellantS.
(Michael A. Kernbach; Jack A. Burgess &
Associates, on brief), for appellee.
County of York Fire & Rescue (hereinafter referred to as
"employer") contends that the Workers' Compensation Commission
erred in finding that (1) Donald M. Dinse, a firefighter, proved
he sustained disability causally related to his hypertension,
entitling him to the presumption contained in Code § 65.2-402(B);
(2) Dinse's hypertension did not pre-exist his employment with
employer; and (3) the employer's evidence failed to rebut the
presumption contained in Code § 65.2-402(B). 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In holding that Dinse proved he sustained disability
causally related to his hypertension, the commission found as
follows:
The medical records indicate that
[Dinse] was admitted to the
Williamsburg Community Hospital on
August 31, 1994, complaining of
chest pain. Dr. Steven Cummings
diagnosed esophageal spasm,
hypertension, and hyperventilation.
Dr. Cummings prescribed
medication, and sent [Dinse] "home
to bed." Dr. Cummings signed a
Quick-Fax Report dated August 31,
1994, indicating a diagnosis of
hypertension and chest pain. He
recommended modified duty until
September 7, 1994. Approximately,
six months later, on March 14,
1995, Dr. Cummings, in answering a
question posed by the employer,
indicated that [Dinse] had not
suffered any disability from work
as a result of his hypertension.
We find [Dinse's] testimony and the
contemporaneous medical records
more persuasive, and find that
[Dinse] did, in fact, suffer
disability caused by his
hypertension, as indicated in the
Quick-Fax Report.
"Medical evidence is not necessarily conclusive, but is
2
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). Furthermore, "[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." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
The commission was entitled to accept Dr. Cummings' opinions
contained in the Quick-Fax Report and to give little probative
weight to his opinion rendered six months later. The Quick-Fax
Report, coupled with Dinse's testimony, constitutes credible
evidence to support the commission's finding that Dinse proved he
suffered disability due to his hypertension. "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."
Id.
II.
Dinse denied ever receiving a diagnosis of hypertension
before he began working for the employer. Dinse's Navy discharge
examination did not contain a diagnosis of hypertension. In
addition, Dinse received a pre-employment physical, which did not
indicate a diagnosis of hypertension. This credible evidence
supports the commission's finding that Dinse was not suffering
from hypertension when he began working for the employer.
3
Therefore, Dinse was entitled to the presumption contained in
Code § 65.2-402(B).
In its role as fact finder, the commission was entitled to
give little probative weight to various medical records generated
after Dinse's date of hire. Some of these records contained
indications of a history of hypertension pre-dating Dinse's
employment. However, the employer failed to produce any medical
records to substantiate a diagnosis of hypertension prior to the
date the employer hired Dinse.
III.
Under the circumstances of this case, "the employer must
exclude work-related stress as a contributing factor to rebut the
presumption [provided in Code § 65.2-402(B)]." Duffy v.
Commonwealth of Virginia/Dept. of State Police, 22 Va. App. 245,
251, 468 S.E.2d 702, 705 (1996). Unless we can say as a matter
of law that the employer's evidence met its 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 October 27, 1994, Dr. Cummings opined that "[Dinse's] job
is definitely stressful, however, and that probably is a factor
in the degree of difficulty that has been experienced in
controlling his blood pressure in the past." The employer
presented no evidence excluding Dinse's work as a contributing
cause of his hypertension. Thus, we cannot say as a matter of
4
law that the employer's evidence rebutted the statutory
presumption provided under Code § 65.2-402(B).
For these reasons, we affirm the commission's decision.
Affirmed.
5