Thurondie L. Chisholm v. The Washington Post ( 1998 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present:   Judges Elder, Bumgardner and Senior Judge Baker
    THURONDIE L. CHISHOLM
    MEMORANDUM OPINION *
    v.   Record No. 0786-98-4                          PER CURIAM
    AUGUST 25, 1998
    THE WASHINGTON POST AND
    GALLAGHER BASSETT SERVICES
    FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
    (Robert A. Mordhorst; Mordhorst, Taweel &
    Adams, on brief), for appellant.
    (Charles F. Midkiff; Midkiff & Hiner, on
    brief), for appellees.
    Thurondie L. Chisholm ("claimant") contends that the
    Workers' Compensation Commission ("commission") erred in denying
    him an award of compensation benefits on the ground that he
    failed to prove that he sustained more than seven days of
    disability during the two-year period immediately following his
    May 8, 1993 injury by accident.   Pursuant to Rule 5A:21(b), The
    Washington Post ("employer") raises the additional question of
    whether the commission erred in finding that claimant proved a
    causal relationship existed between his May 8, 1993 back injury
    and his subsequent medical treatment and uncompensated
    disability.   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
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    5A:27.
    Disability Benefits
    On May 8, 1993, while working for employer as a paper
    handler, claimant was removing paper rolls from a terminal and
    placing them in two lanes.   After claimant placed a roll in a
    lane, he stepped backwards to back down some steps.   A handrail
    on the steps was missing and claimant fell backwards about three
    to four feet, landing on his lower back.   On March 7, 1996,
    claimant filed an application seeking wage loss benefits and
    medical benefits.
    The commission held that because the employer did not file
    the Employer's First Report of Accident until January 24, 1996
    and claimant proved prejudice, the statute of limitations was
    tolled and claimant's March 7, 1996 application was not
    time-barred.   Employer does not challenge this finding on appeal.
    The commission further held that claimant was not entitled
    to an award of disability benefits on the ground that he failed
    to prove that he missed more than seven days from work during the
    two years immediately following his May 8, 1993 injury by
    accident.   Claimant contends that based upon this Court's holding
    in Mayberry v. Alcoa Building Products, 
    18 Va. App. 18
    , 
    441 S.E.2d 349
     (1994), he was not required to prove compensable
    disability within two years after the date of his accident, but
    only that he sustained some disability within two years after the
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    accident.   We disagree. 1
    In Mayberry, this Court held that where an employee did not
    file a timely application or demonstrate any disability during
    the two-year period following the industrial accident, that
    employee could not be awarded compensation for total disability
    which occurred more than two years after the injury by accident.
    See id. at 20, 
    441 S.E.2d at 350
    .    We specifically held that
    "[w]e affirm because Mayberry had no awardable work incapacity
    within two years from the date of his accident."    Id. at 19, 
    441 S.E.2d at 349
    .   Compensation for work incapacity is not awardable
    for the first seven calendar days of incapacity resulting from an
    injury unless certain exceptions are met.    See Code § 65.2-509.
    None of those exceptions apply in this case.
    Here, it was undisputed that claimant did not prove that he
    sustained more than seven days of work incapacity during the
    two-year period immediately following his accident.   Thus,
    because claimant failed to prove that he incurred any awardable
    disability during the two-year period following his accident, the
    commission did not err in denying his request for compensation
    benefits.
    1
    Claimant also argues that because the statute of
    limitations was tolled, the period in which he was required to
    prove compensable disability should also have been tolled until
    employer filed the Employer's First Report of Accident. Claimant
    did not raise this argument before the commission. Accordingly,
    we will not address it for the first time on appeal. See Green
    v. Warwick Plumbing & Heating Corp., 
    5 Va. App. 409
    , 413, 
    364 S.E.2d 4
    , 6 (1988); Rule 5A:18.
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    Causation
    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
    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 ruling that claimant sustained his burden of proving a
    causal relationship between his May 8, 1993 lower back injury and
    his subsequent medical treatment and uncompensated disability,
    the commission found as follows:
    The employer's Written Statement correctly
    points out that the medical records show the
    claimant had similar symptoms both before and
    after the accident, that, as also noted by
    the Deputy Commissioner, the claimant was
    less then accurate in his testimony about
    previous symptoms and that in the records of
    the nine doctors who treated the claimant,
    there are about five different causes stated
    for his injury.
    The Deputy Commissioner gave greater
    evidentiary weight to the fact that the
    claimant did not have radiating symptoms in
    his leg since 1987 and that three of the
    doctors attributed the need for surgery to
    the May 8, 1993, industrial accident.
    Against this close and inconsistent record,
    we AFFIRM the Deputy Commissioner's decision
    that the evidence preponderates in
    establishing the requisite causal connection.
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    "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 its role as fact finder, the
    commission was entitled to weigh the medical evidence, to accept
    the opinions of Dr. Fraser C. Henderson, Dr. William Lauerman,
    and Dr. Steven Taub, and to reject any contrary medical opinions.
    The opinions and medical records of Drs. Henderson, Lauerman,
    and Taub constitute credible evidence to support the commission's
    decision.   "The fact that there is 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).
    For these reasons, we affirm the commission's decision.
    Affirmed.
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