James W. Peach, Jr. v. Talley Sign Company ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
JAMES W. PEACH, JR.
MEMORANDUM OPINION *
v. Record No. 1706-97-2 PER CURIAM
DECEMBER 23, 1997
TALLEY SIGN COMPANY
AND
TRANSPORTATION INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Matthew H. Kraft; Rutter & Montagna, on
brief), for appellant.
(Jennifer G. Marwitz; Law Offices of Roya
Palmer, on brief), for appellees.
James W. Peach, Jr. (claimant) contends that the Workers'
Compensation Commission erred in denying his claim for an award
of permanent partial disability benefits on the ground that he
failed to prove that his permanent vision loss was causally
related to his compensable January 25, 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).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proving a causal connection between his
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
vision loss and his compensable injury by accident, 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).
In denying claimant's application, the commission found as
follows:
In his de bene esse deposition of
April 24, 1996, Dr. [John W.] Dickerson
stated that he believed the claimant suffered
a trauma to the left eye, causing blood
vessels that service the optic nerves to
hemorrhage, causing the vision loss.
However, he testified that he would have
expected to find observable residua or
pathology within, or on parts of the
claimant's cornea or optic nerve, and he
found none. When asked about whether he
thought damage between the optic nerve and
the retina caused the vision loss, Dr.
Dickerson explained, "I don't know for sure
what happened to Mr. Peach. That's what
frustrates me."
* * * * * * *
In considering Dr. Dickerson's opinions
as a whole, it is apparent that he assumes
the accident caused the loss of visual
acuity, only because there is little else to
explain it. See, e.g., April 5, 1995 letter
("I can only assume that this was caused by
his injury"). In his deposition, he offered
explanations as to what may have caused the
loss of vision, but saw no residual effects
normally expected to be found in such a case.
The commission also noted that Drs. S. Talegaonkar and W. Richard
Jeter, who treated claimant during 1994, did not believe at that
time that claimant's eye problems were related to his compensable
injury.
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The commission's factual findings are supported by the
record. In light of the opinions of Drs. Talegaonkar and Jeter
and the speculative nature of Dr. Dickerson's opinions, the
commission, as fact finder, was entitled to conclude that
"[g]iven the evidence as a whole, we find that the claimant has
failed to prove by a preponderance of the evidence that his
vision loss is causally related to the January 25, 1994
accident." "Medical evidence is not necessarily conclusive but
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).
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained his burden of proof.
Accordingly, the commission's findings are binding and conclusive
upon us on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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