Peter O. Ridgway v. Lillian Vernon Corp

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
PETER O. RIDGWAY
v. Record No. 1353-95-1 MEMORANDUM OPINION *
PER CURIAM
LILLIAN VERNON CORPORATION NOVEMBER 7, 1995
AND
HARTFORD FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Peter O. Ridgway, pro se, on briefs).
(Mary Louise Kramer; Jennifer G. Marwitz; Sands,
Anderson, Marks & Miller, on brief), for appellees.
Peter O. Ridgway contends that the Workers' Compensation
Commission erred in finding that he failed to prove that his left
foot Morton's neuroma was causally related to his compensable
November 8, 1993 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.
In denying compensation to Ridgway for his left foot
condition, the commission found:
[T]he evidence simply does not predominate in
establishing that [Ridgway's] probable
Morton's neuroma was probably caused by [his]
November 1993 accident or subsequent problems
related to this accident. At most, Dr. Payne
has indicated that [Ridgway's] "suggested"
Morton's neuroma "could be" traumatic in
nature and related to [his] compensable
injury. Likewise, as noted by the Deputy
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commissioner, Dr. Williamson's physicians
assistant did not set forth an opinion of a
physician that [Ridgway's] foot pain was most
likely secondary to [his] compensable knee
condition. The note from the physician's
assistant simply does not advise whose
opinion it was that [Ridgway's] pain was most
likely related to persistent gait changes.
We are not free to speculate in this regard,
and accordingly, at most [Ridgway's] evidence
amounts to a statement of possibility rather
than probability.
When the commission's findings are supported by credible
evidence, those findings are conclusive and binding on appeal.
Ross Laboratories v. Barbour, 13 Va. App. 373, 377-78, 412 S.E.2d
205, 208 (1991).
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). "If
the evidence shows that it is just as probable that the
disability resulted from a cause which is not compensable, as it
is that it resulted from one which is compensable, the claimant
has not sustained his burden of proof." Bergmann v. L&W Drywall,
222 Va. 30, 32, 278 S.E.2d 801, 802 (1981).
The commission's finding that none of Ridgway's physicians
opined that his Morton's neuroma was probably caused by his
November 1993 injury by accident is supported by the medical
records. Dr. Payne's opinion was couched in terms of
possibilities rather than probabilities. In addition, the
commission was entitled to give little weight to the opinion in a
June 1, 1994, office note from Paul Versage, Dr. Williamson's
2
physician's assistant, because Versage did not clearly identify
the source of the opinion. 1 A claimant's proof of the required
causal connection must go beyond mere conjecture. Southall v.
Eldridge Reams, Inc., 198 Va. 545, 548, 95 S.E.2d 145, 147
(1956).
Credible evidence in the record supports the commission's
finding that Ridgway failed to meet that burden of proving that
his Morton's neuroma was causally related to his compensable
injury by accident. Accordingly, we affirm the commission's
decision.
Affirmed.
1
We do not consider Versage's March 9, 1995 letter, which
Ridgway included in the appendix and relied upon in his brief.
Ridgway neither presented this medical report to the deputy
commissioner nor sought its consideration as after-discovered
evidence before the full commission on review.
3