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 1997-06

Gwynne Strickland v. Cacique ( 1997 )


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  •                     COURT OF APPEALS OF VIRGINIA
Present:   Judges Baker, Elder and Fitzpatrick
GWYNNE STRICKLAND
v.   Record No. 0224-97-2                        MEMORANDUM OPINION *
PER CURIAM
CACIQUE AND                                        JUNE 17, 1997
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Brien A. Roche; Johnson & Roche, on brief),
for appellant.
(Elizabeth A. Zwibel; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.
Gwynne Strickland (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that
Cacique (employer) proved that claimant's lower back complaints
and any resulting disability were not causally related to her
compensable May 28, 1994 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.   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).
"General principles of workman's compensation law provide that
'[i]n an application for review of any award on the ground of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'"    Great Atl. & Pac. Tea Co. v. Bateman,
    4 Va. App. 459
    , 464,
    359 S.E.2d 98
    , 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves,
    1 Va. App. 435
    , 438-39,
    339 S.E.2d 570
    ,
572 (1986)).   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).
Claimant's treating orthopedic surgeon, Dr. Joseph D.
Linehan, opined that claimant's "low back pain is in no way
related to her cervical injury of 5/28/94."   Dr. Linehan's
medical records and opinions constitute credible evidence to
support 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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