Otis L. Tinsley, Jr. v. VA Mirror Company, Inc.etc

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
OTIS L. TINSLEY, JR.
MEMORANDUM OPINION*
v. Record No. 0728-00-3 PER CURIAM
FEBRUARY 27, 2001
VIRGINIA MIRROR COMPANY, INC. AND
NATIONAL SURETY CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Otis L. Tinsley, pro se, on brief).
(Christopher M. Kite; Frith, Anderson &
Peake, P.C., on brief), for appellees.
Otis L. Tinsley (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that back surgery proposed by Dr. Joel Singer was causally
related to his compensable June 11, 1996 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. See Rule 5A:27.
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).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission’s findings are
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In ruling that claimant failed to prove that the proposed
surgery was causally related to his compensable injury, the
commission found as follows:
[W]e note Dr. [Matthew W.] Yates' MRI
report, that shows a degenerative disc
condition that is essentially unchanged from
the previous June 21, 1996, study. Dr.
Singer in his initial medical report,
advised that the claimant had a new
herniated disc at L4-5 and a recurrent
herniated disc at L5-S1. His report of
April 30, 1998, indicated that the claimant
did not remember when this happened. This
report makes no statement as to the causal
connection to the industrial accident. Dr.
Singer, however, in his May 13, 1998, letter
written in response to a call from claimant,
indicates that he meant in his previous
report to say that the claimant did not have
a new injury but a recurrent pain secondary
to workers' compensation related herniated
disc.
Based on the totality of the record, we
cannot find that the doctor's subsequent
statement sufficiently causally relates the
claimant's need for surgery to his workers'
compensation accident within the requisite
degree of certainty. At best, the doctor
indicates that the claimant is having
recurrent pain secondary to a herniated
disc. In view of the doctor's earlier note
indicating that the claimant had a new
herniated disc at L4-5, and without further
explanation for his change in opinion to say
there was no new injury, we cannot find that
the claimant has established the requisite
causal connection between the proposed
surgery and the workers' compensation
accident.
- 2 -
In its role as fact finder, the commission was entitled to
weigh the medical evidence. The commission did so and
articulated its reasons for giving little probative weight to
Dr. Singer's inconsistent and ambiguous opinions. In light of
these reasons, the commission was entitled to conclude that Dr.
Singer's opinions did not constitute sufficient evidence to
prove that the proposed surgery was causally related to
claimant's compensable injury. "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).
Absent Dr. Singer's opinions, no evidence proved a causal
connection between the proposed surgery and claimant's
compensable June 11, 1996 injury by accident. Accordingly, we
cannot find as a matter of law that claimant's evidence
sustained his burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
- 3 -