Meineke Discount Mufflers & Brakes,et al. v. Dankel ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MEINEKE DISCOUNT MUFFLER & BRAKES,
MERCHANTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION AND
TRIGON ADMINISTRATORS
MEMORANDUM OPINION *
v. Record No. 2813-97-4 PER CURIAM
APRIL 21, 1998
TERRENCE EDWARD DANKEL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John J. Michels, Jr; McGuire, Woods,
Battle & Boothe, on brief), for appellants.
(Craig A. Brown; Ashcraft & Gerel, on
brief), for appellee.
Meineke Discount Mufflers & Brakes and its insurer
(hereinafter referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Terrence Edward
Dankel proved that the proposed surgical release of his adductor
muscles was causally related to his September 28, 1995
compensable back injury. 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. See Rule 5A:27.
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). "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).
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). So
viewed, the evidence proved that Dankel sustained a compensable
lower back injury while working for employer as a store manager.
On March 12, 1996, Dr. Ian D. Gordon performed spinal fusion
surgery on Dankel's back. This surgery was necessitated by
Dankel's work-related injury. After the surgery, Dankel
experienced decreased range of motion; decreased ability to
twist, bend or climb; decreased mobility in his hips; and pain in
his back, legs and hips.
Dankel was born with a mild case of lower extremity cerebral
palsy, which did not affect his ability to work prior to the
work-related accident. However, Dr. Gordon noted that after the
spinal fusion, Dankel suffered from increased spasticity in his
legs and a crouched gait. Dr. Gordon referred Dankel to Dr.
Wallace B. Masciuch, an orthopedist specializing in treating
cerebral palsy. Dr. Masciuch concluded that the tightness in
Dankel's hips was probably made more significant because of his
back condition. Dr. Masciuch also reported the presence of
spastic diplegia with tightness of the hip adductors and distal
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hamstrings and recommended surgical releases of the hamstrings
and adductor muscles. Dr. Masciuch opined that Dankel's problems
worsened as a result of the spinal fusion.
Dr. Gordon also opined that Dankel's spinal fusion caused
increased problems with mobility and aggravated Dankel's cerebral
palsy. Dr. Gordon opined that because the spinal fusion was
directly related to the work accident, the aggravation of the
cerebral palsy was also a direct result of the work injury. Both
Dr. Gordon and Dr. Masciuch opined that Dankel's industrial
accident necessitated the spinal fusion, which caused a loss of
lumbar motion, resulting in the need for the adductor release
surgery.
At employer's request, Dr. Kevin F. Hanley, an orthopedist,
examined Dankel and agreed that the surgical release of Dankel's
hamstrings was related to the industrial accident. However, Dr.
Hanley concluded that the surgery on Dankel's adductor muscles
was not related to the accident. He opined that the adductor
surgery was necessitated by degenerative changes in the hips
rather than by the industrial 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, 214 (1991). In its role as fact finder, the
commission was entitled to weigh the medical evidence. The
commission did so and accepted the opinions of the treating
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physicians, Drs. Gordon and Masciuch, while rejecting the
contrary opinion of Dr. Hanley. The opinions of Drs. Gordon and
Masciuch constitute credible evidence supporting 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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