CPF Corporation & Safeguard Insurance Co. v. Benbow ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
CPF CORPORATION AND
SAFEGUARD INSURANCE COMPANY
MEMORANDUM OPINION **
v. Record No. 0768-01-4 PER CURIAM
JULY 31, 2001
ROBERT L. BENBOW
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Heather K. Bardot; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellants.
(James F. Green; Ashcraft & Gerel, LLP., on
brief), for appellee.
CPF Corporation and its insurer (hereinafter referred to as
"employer") contend that the Workers' Compensation Commission
erred in finding that Robert L. Benbow proved (1) he sustained
an injury by accident arising out of his employment on August
19, 1999; and (2) he sustained disability from August 19, 1999
through May 14, 2000 causally related to the August 19, 1999
injury by accident. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I. Injury by Accident
"To recover benefits, the claimant must establish by a
preponderance of the evidence that he suffered an injury by
accident 'arising out of and in the course of [his] employment,'
and 'that the conditions of the workplace . . . caused the
injury.'" Falls Church Const. Corp. v. Valle, 21 Va. App. 351,
359-60, 464 S.E.2d 517, 522 (1995) (citations omitted). A
finding by the commission that an injury did or did not arise
out of the employment "is a mixed question of law and fact and
is, thus, reviewable on appeal." Jones v. Colonial Williamsburg
Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301 (1989). The
phrase "arising out of" refers to the origin or cause of the
injury. County of Chesterfield v. Johnson, 237 Va. 180, 183,
376 S.E.2d 73, 74 (1989). Plumb Rite Plumbing Service v.
Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).
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). In
ruling that Benbow proved he sustained a compensable injury by
accident to his back on August 19, 1999, while lifting a soap
container, the commission found as follows:
[W]e are cognizant that the claimant
appeared at first to indicate that he may
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have merely been bending when he felt the
pain; however, in subsequent questioning by
the deputy commissioner he indicated having
lifted the container. We also note that his
pro se Claim for Benefits form also
indicates an injury while lifting a
50-gallon jug by himself. The medical
records prior to August 25, 1999, do not
indicate any low back or leg symptoms. It
is on this date that a sudden numbness and
ataxia in both legs with low back pain was
first noted, as well as a bilateral limp.
In the September 14, 1999, note a specific
incident while lifting a 50-pound barrel is
also mentioned. Dr. [Michael W.] Dennis
likewise in his first examination refers to
an injury while doing heavy lifting. Dr.
Dennis also has indicated that the claimant
had a low back injury as a result of a work
injury. When the evidence is considered in
light of the claimant's somewhat rambling
and inarticulate testimony, and the finding
by the deputy commissioner, who had an
opportunity to observe the witnesses, we
find that a compensable injury by accident
on August 19, 1999, while lifting a soap
container has been established.
Evidence the commission found to be credible, including
Benbow's testimony, which was corroborated by his pro se Claim
for Benefits Form and the medical histories, amply supports the
commission's finding. As fact finder, the commission was
entitled to weigh Benbow's testimony, the substance of the Claim
for Benefits Form he completed, and the content of the medical
histories. Upon that evidence, the commission could conclude
that Benbow proved he sustained an injury to his lower back
while lifting the soap container. In other words, credible
evidence proved that a condition of the workplace, which existed
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in the course of claimant's employment, i.e., lifting the soap
container, caused his injury.
II. Disability
Dr. Dennis began treating Benbow on October 4, 1999. In
his April 19, 2000 response to written questions, Dr. Dennis
opined that the August 19, 1999 work injury caused Benbow's low
back condition and that Benbow was disabled as a result of that
condition. In response to an additional question whether
Benbow's work-related low back injury in and of itself was
totally disabling, Dr. Dennis replied "yes." Dr. Dennis last
examined Benbow on March 6, 2000 and instructed him to return in
six weeks.
The commission was entitled to accept Dr. Dennis's opinions
and to reject the opinion of Dr. Bruce Ammerman, who did not
examine Benbow before May 15, 2000. "Medical evidence 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). "Questions raised by conflicting
medical opinions must be decided by the commission." Penley v.
Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236
(1989). "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). Dr. Dennis's
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opinions constitute credible evidence to support the
commission's finding that Benbow was totally disabled from
August 19, 1999 through May 14, 2000, as a result of the August
19, 1999 injury by accident.
For these reasons, we affirm the commission's decision.
Affirmed.
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