Giant Food, Inc v. Josephine C. Price ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
GIANT FOOD, INC.
AND
LUMBERMENS MUTUAL CASUALTY COMPANY
v. Record No. 0788-95-4 MEMORANDUM OPINION *
PER CURIAM
JOSEPHINE C. PRICE SEPTEMBER 26, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Deborah A. Farson; Jordan, Coyne & Savits, on brief),
for appellants.
(Robert B. Adams; Ashcraft & Gerel, on brief), for
appellee.
Giant Food, Inc. and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that Josephine C. Price proved (1) an
identifiable incident occurring at a reasonably definite time;
and (2) a causal connection between the January 14, 1993 incident
she described at the hearing and any structural or mechanical
change in her right shoulder condition. 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. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
I. Identifiable Incident
Price testified that on January 14, 1993, she was lifting
boxes of chicken packed in ice weighing forty to fifty pounds.
As she was lifting the third box of chicken, she felt a severe
pain in her arm and was unable to continue working. She sought
medical attention the next day from Dr. Alben Goldstein, a
musculoskeletal disease specialist. Dr. Goldstein recorded a
history of "[o]n January 14, 1993, Mrs. Price developed severe
pain in her right shoulder and right wrist."
In holding that Price proved an identifiable incident, the
commission found the following:
In reviewing the recorded statement and
contemporaneous medical reports, we do not
find that the claimant's statements under
oath regarding a sudden injury are impeached.
It is clear that the claimant suffered from
some underlying discomfort due to job-related
repetitive strain. She discusses this
discomfort in her statements to her doctors
and the carrier. However, it is also clear
that the claimant was able to perform her job
despite her "unusual state of achy, annoying
hurt," until January 14, 1993, when she
experienced sudden, disabling pain. This
sudden event was ultimately diagnosed in
April, 1993, as an extensive, complete
rotator cuff tear.
Claimant's testimony, which is not inconsistent with the
history given by her to Dr. Goldstein, provides sufficient
credible evidence to support the commission's finding. The
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commission weighed the totality of the evidence, including the
recorded statement, and resolved any inconsistencies in favor of
Price. We will not disturb this finding on appeal. "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).
II. Causal Connection
"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). "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).
In finding that Price proved a causal connection between the
January 14, 1993 incident and her right shoulder injury, the
commission stated:
The claimant's treating specialist, Dr.
. . . Goldstein, stated unequivocally that,
while the claimant had underlying tendinitis
and rotator cuff degeneration caused by
overuse on the job, "there was a specific
incident which occurred on January 14, 1993,"
which culminated in a complete rotator cuff
tear and immediate disability. Dr. [William
A.] Hanff saw the claimant on one occasion,
in August of 1993, and recorded the sudden
onset of pain on January 14, 1993. He
concluded however that the rotator cuff tear
is chronic and not work related, and that the
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claimant's job does not involve repetitive
stress.
* * * * * * *
Dr. Goldstein, the treating physician,
expressed his unequivocal opinion is that the
rotator cuff tear occurred suddenly on
January 14, 1993. His opinion is consistent
with the claimant's testimony. We will not
discount this opinion based upon a single
examination by Dr. Hanff. Nor do we find
that the claimant's credible testimony is
impeached by minor inconsistencies in the
medical record or recorded statement.
In its role as fact finder, the commission was entitled to
accept Dr. Goldstein's opinion and to reject the opinion of Dr.
Hanff. In cases of conflicting medical evidence, "'[t]he general
rule is that when an attending physician is positive in his
diagnosis . . . , great weight will be given by the courts to his
opinion.'" Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.
435, 439, 339 S.E.2d 570, 572 (1986) (citations omitted). Dr.
Goldstein's opinion provides credible evidence to support the
commission's decision. The existence of "contrary evidence in
the record is of no consequence if there is credible evidence to
support the commission's finding." Brooks, 12 Va. App. at 894,
407 S.E.2d at 35.
For these reasons, we affirm the commission's decision.
Affirmed.
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