Southfork Trucking, Inc. and Reliance Ins. v. Whitt

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
SOUTHFORK TRUCKING, INC. AND
RELIANCE INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1108-00-3 PER CURIAM
SEPTEMBER 12, 2000
ALBERT WHITT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert M. McAdam; Jones & Glenn, PLC, on
brief), for appellants.
(Paul L. Phipps; D. Allison Mullins; Lee &
Phipps, P.C., on brief), for appellee.
Southfork Trucking, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Albert Whitt
(claimant) proved that he suffered a sudden mechanical change in
his body as a result of his October 10, 1998 work-related
accident, which caused a material aggravation of his
pre-existing disc herniation at the L5-S1 level and his
subsequent disability and need for surgery. 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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The commission concluded that "claimant sustained a
material aggravation of his pre-existing lumbar condition on
October 10, 1998 [and] . . . that this incident caused a
mechanical change in the body, namely a change in the location
and severity of the pre-existing disc herniation at the L5-S1
level." In so ruling, the commission found as follows:
The medical record clearly reflects previous
injury to the lower back, necessitating two
surgeries to the lumbar region. In January
1998, per Dr. [Paul C.] Peterson's
testimony, the claimant was diagnosed with a
new injury to the lumbar spine. Diagnostic
studies at that time revealed a bulging disc
at the L4-L5 level as well as a left
paramedian disc herniation at the L5-S1
level. The claimant was able to perform his
pre-injury work duties without difficulty,
despite continuing complaints of pain and
despite Dr. Peterson's recommendation that
the claimant undergo surgery. After October
10, 1998, the claimant was unable to perform
his pre-injury work, and complained of an
exacerbation of left leg pain.
. . . Dr. Peterson initially testified
that one basis for his opinion regarding the
issue of causation was the fact that the
claimant had not previously complained of
left leg pain. The medical record
contradicts this assertion, and Dr. Peterson
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corrected his error later in the deposition
testimony. Diagnostic studies performed
after October 10, 1998, showed a disc
herniation at the L5-S1 level which was more
centrally located, leading Dr. Peterson to
conclude that the claimant sustained an
aggravation of his pre-existing condition.
While it is clear that the treating
physician had previously recommended
surgical intervention, it appears from his
deposition testimony that the absolute need
for surgery was accelerated by the October
10, 1998, work injury.
The commission's findings are supported by credible
evidence, including claimant's testimony and Dr. Peterson's
medical reports and deposition testimony. The commission as
fact finder was entitled to accept Dr. Peterson's opinions and
to reject any contrary medical opinions. Furthermore,
"[m]edical 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). Based upon Dr. Peterson's reports and
deposition testimony, the commission could reasonably infer that
the October 10, 1998 accident caused a sudden mechanical change
in claimant's body, that is, a material aggravation of his
pre-existing disc herniation, which resulted in disability and
accelerated the need for surgery.
For these reasons, we affirm the commission's decision.
Affirmed.
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