Giant Food, Inc. v. Martin R. Roof ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
GIANT FOOD, INC.
AND
LUMBERMENS MUTUAL CASUALTY COMPANY
v. Record No. 2189-94-4 MEMORANDUM OPINION *
PER CURIAM
MARTIN R. ROOF MAY 9, 1995
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Deborah A. Farson; Jordan, Coyne & Savits, on
briefs), for appellants.
(Charles W. O'Donnell, 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 (1) Martin R. Roof proved a
causal connection between his compensable July 31, 1991 injury by
accident and his October 1993 back surgery and resulting
disability; and (2) Roof's claim, filed on September 27, 1993,
was timely because employer did not file the First Report of
Accident until September 22, 1993, after the two-year statute of
limitations had run. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. R.G. Moore Bldg. Corp. v.
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). "The existence of 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).
"A question raised by conflicting medical opinion is a question
of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347
S.E.2d 532, 533 (1986).
The medical records and reports of Dr. Robert F. Lehman, the
treating physician, provide credible evidence to support the
commission's finding that the July 31, 1991 injury by accident
aggravated Roof's pre-existing disc condition, and that the
October 1993 surgery and resulting disability were caused by this
aggravation. Specifically, Dr. Lehman's August 8, 1991 notes
substantiate Roof's testimony that, prior to July 31, 1991, his
back pain was minor and intermittent, and that, on that date, his
back and leg pain significantly increased. In his September 30,
1993 report, Dr. Lehman stated that the compensable accident
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caused an aggravation of Roof's pre-existing facet abnormality.
In its role as fact finder, the commission was entitled to weigh
Dr. Lehman's records, and to accept his conclusion that the work-
related accident aggravated Roof's pre-existing back condition
and led to his surgery and resulting disability. The commission
was also entitled to discount the opinion of Dr. Edward G.
Alexander, an orthopedic surgeon who examined Roof at employer's
request.
When an injury sustained in an industrial accident
accelerates or aggravates a pre-existing condition, disability
resulting therefrom is compensable. Russell Loungewear v. Gray,
2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). Accordingly, the
commission did not err in finding that Roof proved a causal
connection between his compensable July 31, 1991 accident and his
October 1993 surgery and resulting disability.
II.
The commission held that Roof's claim, filed on September
27, 1993 with respect to the July 31, 1991 accident, was timely.
This conclusion was based upon the commission's finding that the
employer did not file the First Report of Accident until after
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the two-year limitations period for filing a claim had expired.
In order to toll the limitations period pursuant to Code
§ 65.2-602, Roof was required to prove that (1) the employer had
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The full commission did not find that estoppel applied in
this case to toll the limitations period.
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notice of the July 31, 1991 accident; (2) the employer failed to
file the First Report of Accident as required by Code § 65.2-900;
and (3) such conduct prejudiced Roof's rights with respect to
filing a claim with the commission prior to the expiration of the
two-year limitations period.
It was undisputed that employer had notice of the accident,
and that employer did not file the First Report of Accident until
after the two-year limitations period had expired. With respect
to the issue of prejudice, there was no evidence that Roof ever
received the Workers' Compensation Guide or other notice of his
need to file a claim. If employer had filed the First Report of
Accident, Roof would have received the proper notice, and he
would have had the opportunity to file a timely claim. Roof and
his wife testified that if they had known they were required to
file a claim with the commission they would have done so in a
timely manner. Based upon this record, the commission did not
err in finding that the two-year limitations period was tolled
until September 22, 1993.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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