Lowe's Lynchburg, No. 0082 v. Cynthia Andrews

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
LOWE'S OF LYNCHBURG, NO. 0082/
LOWE'S HOME CENTERS, INC.
MEMORANDUM OPINION*
v. Record No. 0706-03-3 PER CURIAM
AUGUST 5, 2003
CYNTHIA ANDREWS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Dale W. Webb; Monica Taylor Monday; Gentry
Locke Rakes & Moore, on brief), for
appellant.
(Craig P. Tiller; Davidson, Sakolosky,
Moseley & Tiller, P.C., on brief), for
appellee.
Lowe's of Lynchburg, No. 0082/Lowe's Home Centers, Inc.
contends the Workers' Compensation Commission erred in finding
that Cynthia Andrews proved that her upper back, thoracic back,
and shoulder blade injuries were causally related to her
compensable October 16, 2000 injury by accident. Upon reviewing
the record and the parties' briefs, 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence proved that Andrews heard her back pop and
felt pain on October 16, 2000, while lifting a fifty to
eighty-pound countertop at work. She described the pain as
being at her "belt line," which she indicated to be at her
middle back. The day after the accident, she began to
experience pain in her shoulder blades, across her upper back,
in the center of her middle back, and down her left leg.
Andrews had not suffered from any back pain before October 16,
2000. Lowe's accepted Andrews' lower back injury as
compensable. Thus, the compensability of the lower back injury
is not contested on appeal.
In ruling that Andrews proved that her upper and mid-back
problems were causally related to her compensable October 16,
2000 injury by accident, the commission found as follows:
[Andrews] testified that within a few
days of the injury by accident, she suffered
back pain in various areas of her back. The
fact that she did not complain to
Dr. deGuzman about back pain, other than her
low back, is not fatal to her case. The
. . . Act does not require a claimant to
report all of her causally related symptoms
to a physician within several days.
The . . . medical record reflects that
[Andrews] described additional back pain and
that she consistently attributed her
problems to lifting a countertop in October
2000. No physician suggested another source
of her condition or opined that repetitive
activities caused the pain. Dr. Diminick
repeatedly advised that he treated the
claimant for thoracic pain resulting from a
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work-related lifting accident. Notably,
Dr. Albers emphasized [Andrews'] reports of
different areas of back pain. He concluded
that [Andrews'] symptoms and treatment were
causally related to the industrial accident.
Similarly, Dr. Joseph and Schneider, [the
physical therapist,] noted a year-long
history of thoracic pain from the
work-related lifting incident. There is no
medical evidence to the contrary.
"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). Andrews'
testimony, coupled with the medical records and opinions of
Dr. Diminick, Dr. Albers, and Dr. Joseph, constitutes credible
evidence to support the commission's findings. "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, 215
(1991). As fact finder, the commission weighed the totality of
the medical evidence, and concluded that it was sufficient to
sustain Andrews' burden of proof.
Lowe's contention that the commission should have denied
Andrews' claim pursuant to Massie v. Firmstone, 134 Va. 450, 114
S.E. 652 (1922), lacks merit. It argues she was bound by her
testimony on cross-examination that the soreness in her upper
back and shoulders a few days after the accident, but not "far
down the road," may have been caused by lifting countertops all
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day "as far as [she] know[s]." First, "[t]he Massie doctrine
applies only to a party litigant's statements of fact that are
within the litigant's own knowledge, and not to statements of
opinion." Braden v. Isabell K. Horseley Real Estate, Ltd., 245
Va. 11, 16, 425 S.E.2d 481, 484 (1993). Second, the rule does
not apply to "an adverse statement standing in isolation from
the litigant's testimony as a whole." Baines v. Parker, 217 Va.
100, 105, 225 S.E.2d 403, 407 (1976). Andrews' testimony as a
whole, which explains the facts concerning her injury, clearly
described a pop in her back and pain around her belt line when
she lifted a particular countertop. Andrews testified that she
considered "her belt line" to be near her middle back and also
testified that she had pain in different parts of her back the
day after the accident. "To establish an "injury by accident,"
. . . [i]t is not necessary to show an immediate onset of the
symptoms of an injury." Turcios v. Holiday Inn Fair Oaks, 24
Va. App. 509, 518 n.1, 483 S.E.2d 502, 504 n.1 (1997). The fact
finder was entitled to weigh the totality of Andrews' testimony
within the context of the other evidence and resolve any minor
discrepancies in her favor. "[T]he commission's conclusions
upon conflicting inferences, reasonably drawn from proven facts,
are . . . binding on appeal." Watkins v. Halco Engineering,
Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).
For these reasons, we affirm the commission's decision.
Affirmed
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