Michael S. Lumb v. McLane Foods, Inc. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MICHAEL S. LUMB
MEMORANDUM OPINION *
v. Record No. 1345-97-4 PER CURIAM
NOVEMBER 10, 1997
MCLANE FOODS, INC., INSURANCE
COMPANY OF THE STATE OF PENNSYLVANIA
AND AMERICAN INTERNATIONAL
ADJUSTMENT COMPANY, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James E. Swiger, Esq.; Swiger & Cay, on
brief), for appellant.
(Matthew W. Broughton; Leisa Kube Ciaffone;
Gentry, Locke, Rakes & Moore, on brief), for
appellees.
Michael Lumb (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that he
failed to prove that his herniated thoracic disc and related
surgery were causally related to his compensable February 26,
1995 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).
"General principles of workman's compensation law provide that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
'[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570,
572 (1986)). Unless we can say as a matter of law that
claimant's evidence sustained his burden of proof, 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 and finding that his
evidence failed to prove that his herniated thoracic disc was
causally related to his compensable February 26, 1995 injury by
accident, the commission found as follows:
The medical record in this matter does
not support the finding that the claimant's
thoracic injuries were caused by the
industrial injury. Although there were
findings of diffuse pain in the thoracic
region after the compensable injury, a large
herniated disc was found shortly after the
second automobile accident. Dr. [Harold F.]
Young, who performed surgery on the claimant,
indicated that the thoracic disc herniation
was not caused by the compensable injury. We
note that Dr. [Nathan D.] Zasler initially
agreed with this opinion but later reported a
possible causal connection. Dr. [Lawrence]
Blumberg agreed that the surgery was made
necessary by the second accident. After
reviewing the evidence in this matter, we
place greater weight on the medical record
and opinion expressed by Dr. Young.
2
The commission's findings are supported by Dr. Young's
medical records and opinions and the opinion of Dr. Blumberg. As
fact finder, the commission was entitled to accept the opinions
of Drs. Young and Blumberg and to reject Dr. Zasler's opinion.
"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).
Claimant's argument that the commission erred by not
applying the doctrine of compensable consequences is without
merit. The doctrine of compensable consequences provides: where
a causal connection between the initial compensable injury and
the subsequent injury is established, the doctrine of compensable
consequences extends the coverage of the Workers' Compensation
Act to the subsequent injury because the subsequent injury "is
treated as if it occurred in the course of and arising out of the
employee's employment."
American Filtrona Co. v. Hanford, 16 Va. App. 159, 163, 428
S.E.2d 511, 513 (1992) (quoting Bartholow Drywall Co. v. Hill, 12
Va. App. 790, 793-94, 407 S.E.2d 1, 3 (1991) (citations
omitted)). Here, claimant's evidence failed to prove a causal
connection between the initial February 26, 1995 compensable
injury and claimant's subsequently-herniated thoracic disc.
Based upon this record, we cannot say as a matter of law
that claimant's evidence sustained his burden of proof.
Accordingly, we affirm the commission's decision.
3
Affirmed.
4