Cavalier Mining v. David E. Mullins

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
CAVALIER MINING, INC.
AND
TRAVELERS INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1071-96-3 OCTOBER 8, 1996
DAVID E. MULLINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jim H. Guynn, Jr.; Guynn & Clemens, on
brief), for appellants.
(Robert B. Hines II, on brief), for appellee.
Cavalier Mining, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in finding that as
of January 17, 1995, David E. Mullins ("claimant") remained
disabled from performing his pre-injury job due to his
compensable September 17, 1994 back injury. 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.
As a threshold issue, employer contends that the commission
erred in placing the burden of proof upon it. We disagree and
find, based upon this record, that the commission correctly
concluded that
[b]ecause [employer] failed to timely solicit
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and file agreements for an accepted claim
that would have resulted in an enforceable
award from the Commission, we will presume
one was entered to avoid giving the carrier
an advantage by virtue of such neglect.
Accordingly, the burden is on the employer to
present grounds to show that the presumed
award should be terminated. National Linen
Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d
187 (1987) . . . .
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).
Unless we can say as a matter of law that employer's evidence
proved claimant's compensable lower back injury no longer
disabled him from performing his pre-injury work after January
17, 1995, the commission's findings are binding and conclusive
upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699,
173 S.E.2d 833, 835 (1970).
In awarding benefits to claimant, the commission found as
follows:
we infer and find that the claimant's
preexisting spondylolisthesis and
degenerative back disease was [sic]
materially aggravated by the work accident,
and the employer is liable for such effects,
unless and until he has recovered from such
accident and is returned to his pre-injury
state. The medical records establish that
the claimant has never been returned through
medical treatment or passage of time to his
preaccident asymptomatic condition. Rather
it is clear from the medical records that he
has remained symptomatic and under the care
of a physician for the back injury since the
accident. 1
1
The medical evidence showed that claimant sustained an
2
These findings are amply supported by the medical records of
the treating physician, Dr. Kelly Taylor, and the December 2,
1994 Attending Physician's Report of Dr. S. C. Kotay, the
treating orthopedic surgeon. "Where reasonable inferences may be
drawn from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988).
Viewing the evidence in the light most favorable to
claimant, we cannot say as a matter of law that employer's
evidence proved claimant's compensable back injury no longer
disabled him from performing his pre-injury job after January 17,
1995. Accordingly, we affirm the commission's decision.
Affirmed.
acute back strain in 1966. At that time, he was diagnosed as
suffering from spondylolisthesis. In 1990, claimant sustained a
mild lower back sprain. However, between 1990 and the date of
claimant's compensable accident, there is no evidence to indicate
that claimant's back condition was symptomatic or that it ever
caused him to miss work.
3