Berry Enterprises, Inc. v. Rodney A.Johnson ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
BERRY ENTERPRISES, INC. AND
TRANSCONTINENTAL INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1213-99-3 PER CURIAM
OCTOBER 5, 1999
RODNEY ALLEN JOHNSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William F. Karn; Law Offices of Roya Palmer
Ewing, on brief), for appellants.
(Ginger J. Largen; Morefield, Kendrick,
Hess & Largen, P.C., on brief), for appellee.
Berry Enterprises, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that
Rodney Allen Johnson (claimant) proved that his herniated lumbar
disc was causally related to his September 2, 1997 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. See
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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "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, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989). "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 concluding that the medical evidence, the histories, and
the onset of claimant's symptoms supported a finding that his
back symptoms were causally related to his September 2, 1997
injury by accident, the commission found as follows:
The medical record repeatedly refers to the
onset of symptoms following a work-related
lifting incident on September 2, 1997. When
questioned about his chest pain, the
claimant informed the physicians that he
performed heavy labor and injured his back.
On his follow-up examination, he reported
chronic symptoms for three months. In
addition, the claimant told his supervisor,
[Jonathan] Pierce about the injury.
On January 19, 1998, the claimant told
Dr. [William T.] Powers about the previous
injury in August 1996 but that the injury
resolved. [Claimant] did not have any
problem after that until September 1997. On
February 12, 1998, Dr. Powers informed Dr.
[Neal A.] Jewell "of back pain which seems
to date to September of 1997. . . ." Dr.
Jewell detailed a history of lifting a
12-inch block on September 2, 1997, and then
an onset of acute low back pain. He noted
that the claimant continued to work and that
the symptoms varied with his work
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activities. Other health care providers
have also reported the September 1997 work
injury as the source of the current
symptoms. For example, the physical
therapist noted on February 16, 1998, that
the claimant states that on September 2,
1997 he was laying 12 inch block at the
Rescue Squad when he leaned forward and
twisted and felt a sharp pain in his back.
He has had progressive pain since that
time. . . ."
Claimant's testimony, coupled with the medical records and
histories of Drs. Powers and Jewell, constitutes credible
evidence from which the commission could reasonably infer that
claimant's herniated disc was causally related to the September
2, 1997 injury by accident. "Where reasonable inferences may be
drawn from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374
S.E.2d 695, 698 (1988). Here, the evidence supported an
inference that the September 2, 1997 injury by accident caused
claimant's current back condition.
Employer's argument that the commission erroneously relied
upon the medical histories because claimant's physicians were
not aware of his activities after the September 2, 1997 incident
is without merit. Both physicians were clearly aware that
claimant had continued to work for several months after the
September 2, 1997 incident. In addition, because the commission
relied upon credible evidence to support its finding of
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causation, it did not impermissibly require employer to
establish a non-work-related cause of claimant's herniated disc.
For these reasons, we affirm the commission's decision.
Affirmed.
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