Buchanan County Board of Supervisors v. Ray Bostic ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Duff
Argued by teleconference
BUCHANAN COUNTY BOARD OF SUPERVISORS
and
NATIONWIDE MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1104-97-3 JUDGE SAM W. COLEMAN III
DECEMBER 23, 1997
RAY ELMER BOSTIC
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William F. Karn (William B. Pierce, Jr.;
Pierce & Howard, P.C., on brief), for
appellants.
Ginger Jonas Largen (Morefield, Kendrick,
Hess & Largen, P.C., on brief), for appellee.
Buchanan County Board of Supervisors and its insurer
(employer) contend that the Workers' Compensation Commission
erred in finding that Ray E. Bostic's permanent partial
disability to his right index finger was causally related to his
compensable September 25, 1995 injury by accident. Because
credible evidence supports the commission's finding that
claimant's disability to his right index finger was causally
related to the work-related accident, we affirm the commission's
award.
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). "The
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989). A "question raised by
conflicting medical evidence or opinion is a question of fact,"
and "it is fundamental that a finding of fact made by the
[c]ommission is conclusive and binding upon this [C]ourt on
review" when supported by credible evidence. Commonwealth v.
Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986).
On September 25, 1995, claimant suffered a compensable
injury by accident to his right thumb when a dumpster lid fell on
it. On that same date, Dr. Timothy G. McGarry, an orthopedic
surgeon, surgically corrected claimant's right thumb fracture.
He subsequently rated claimant as suffering from a fifty percent
permanent partial disability of the right thumb.
On May 23, 1996, Dr. John M. Chandler examined claimant upon
employer's request. Dr. Chandler confirmed the fifty percent
permanent partial disability to the right thumb. Dr. Chandler
also determined that claimant sustained a twenty percent
permanent partial disability to his right index finger as a
result of the dumpster incident.
After reviewing Dr. Chandler's report, and his own records,
Dr. McGarry agreed that claimant suffered from a twenty percent
permanent disability to his right index finger, but in his
opinion, that disability was not causally related to the dumpster
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accident. Dr. McGarry did not render any opinion as to the cause
of the right index finger injury.
In a letter to employer's insurer, Dr. Chandler affirmed his
opinion stating:
Regarding the mechanism of [claimant's]
injury, certainly he sustained a more severe
injury to the thumb and most of the attention
in [Dr. McGarry's] dictation reports centered
on that injury. However, the nature of his
injury would have included associated injury
to the right index finger and certainly the
objective findings substantiate a
posttraumatic arthrofibrosis of that digit
with some limited range of motion. It
remains my opinion that he sustained a
condition of a crush injury to the index
finger and while that did not result in a
condition which required surgery or extensive
dictation or note in the record, I think the
objective findings speak for themselves.
At the hearing, claimant testified that he had no symptoms
related to his right index finger until Dr. Chandler's
examination showed a loss of function in that finger. However,
claimant also stated that he suffered no right hand or finger
injuries prior to or after the September 25, 1995 work-related
accident.
Based upon this record, the commission found that claimant's
twenty percent permanent partial disability to his right index
finger was causally related to his compensable September 25, 1995
injury by accident.
Dr. Chandler's opinions, along with claimant's testimony
denying any pre-September 25, 1995 or post-September 25, 1995
right index finger injury, constitute credible evidence to
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support the commission's findings. Although the claimant
testified that he did not receive a crush injury to his right
index finger, his testimony was not inconsistent with Dr.
Chandler's opinion that the claimant's thumb injury caused an
"associated injury to the right index finger," which was a
posttraumatic arthrofibrosis that he described as "a condition of
a crush injury to the index finger." Moreover, although
Drs. Chandler and McGarry had conflicting opinions as to whether
the compensable injury by accident had caused the claimant's
right index finger injury, the commission was entitled to
determine the weight and credibility to give to each doctor's
opinion. If credible evidence supports the commission's factual
finding, we are required to uphold that finding on review. See
Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761,
764 (1989); see also Hungerford Mechanical Corp. v. Hobson, 11
Va. App. 675, 677, 401 S.E.2d 213, 215 (1991) ("Medical evidence
is not necessarily conclusive, but is subject to the commission's
consideration and weighing."). "In determining whether credible
evidence exists, the appellate court does not retry the facts,
reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." 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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