Roy Edward Smith v. Koch Raven, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
ROY EDWARD SMITH
v. Record No. 2164-95-3 MEMORANDUM OPINION *
PER CURIAM
KOCH RAVEN/KOCH INDUSTRIES, INC. MARCH 12, 1996
AND
RELIANCE NATIONAL INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Gerald F. Sharp; Browning, Lamie & Sharp, on brief),
for appellant.
(Michael F. Blair; Penn, Stuart, Eskridge & Jones, on
brief), for appellees.
Roy Edward Smith ("claimant") contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that his back pain and disability beginning in August 1994 were
causally related to his compensable December 3, 1993 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. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
sustained his burden of proving causation, the commission's
findings are binding and conclusive upon us. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission found that claimant's evidence did not meet
the requisite burden of proof on the ground that the opinions of
Dr. J.P. Sutherland, Jr., claimant's treating physician, raised
only the possibility that his back complaints and disability
beginning in August 1994 were caused by his compensable December
1993 back injury. In so ruling, the commission found as follows:
[Claimant testified that he] continued to
experience low back and left leg symptoms
after returning to regular employment as an
equipment operator in December 1993. He
missed no time from work and received no
medical treatment for the ensuing eight
months. The claimant returned to Dr.
Sutherland on August 11, 1994. His
complaints, by history, were essentially the
same as those noted on December 6, 1993. Dr.
Sutherland first reported on October 12,
1994, that those complaints "could be related
to an injury which occurred on
12/3/93. . . ." He further noted that the
initial injury had been aggravated by
activities associated with the claimant's
work, i.e., lifting, bending, stooping, etc.
Dr. Sutherland next reported on December 20,
1994, that "there had to be some type of on-
going problems associated with degenerative
disc disease that has been brought from an
asymptomatic condition to a symptomatic
condition . . ." by the industrial accident.
In his deposition, he agreed that there were
at least three possible causes of the
claimant's back complaints, only one of which
included an industrial injury superimposed on
a preexisting condition.
These factual findings are consistent with the record and
support the commission's decision. "To establish by a
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preponderance of the evidence a causal connection between the
incident and the claimed disability, the 'proof must go beyond
conjecture.'" Ratliff v. Rocco Farm Foods, 16 Va. App. 234, 237,
429 S.E.2d 39, 41 (1993) (quoting Southall v. Eldridge Reams,
Inc., 198 Va. 545, 548, 95 S.E.2d 145, 147 (1956)). Because Dr.
Sutherland's opinions only raised the possibility that claimant's
back complaints and disability beginning in August 1994 were
caused by his compensable December 3, 1993 injury by accident, we
cannot find as a matter of law that claimant's evidence sustained
his burden of proof. Accordingly, we affirm the commission's
decision.
Affirmed.
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