Chesapeake Bay Contractors v. Seekins

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
CHESAPEAKE BAY CONTRACTORS, INC. AND
TRANSCONTINENTAL INSURANCE COMPANY
v. Record No. 0799-00-1
DONALD L. SEEKINS, II MEMORANDUM OPINION*
PER CURIAM
DONALD L SEEKINS, II AUGUST 22, 2000
v. Record No. 0842-00-1
SUPPORT SERVICES OF VIRGINIA, INC. AND
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jennifer G. Marwitz; Law Offices of Roya
Palmer Ewing, on brief), for Chesapeake Bay
Contractors, Inc. and Transcontinental
Insurance Company.
(Alan P. Owens, on briefs), for Donald L.
Seekins, II.
(Stephen A. Strickler; Inman & Strickler,
P.L.C., on brief and on brief amicus
curiae), for Support Services of Virginia,
Inc. and Employers Insurance of Wausau.
Chesapeake Bay Contractors, Inc. and its insurer
(hereinafter referred to as "Chesapeake") contend that the
Workers' Compensation Commission (commission) erred in finding
that Donald L. Seekins, II's (claimant) ankle instability,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
disability, and need for surgery after December 1, 1998 were
attributable to an injury while he was employed with Chesapeake,
rather than a result of a subsequent accident on July 30, 1998,
while working for Support Services of Virginia, Inc. ("Support
Services"). 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. 1
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). "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). "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).
In ruling that it was unable to find by a preponderance of
the evidence that a causal relationship existed between
claimant's July 30, 1998 work accident, while in the employ of
1
Because our ruling in Chesapeake's appeal disposes of the
issue in favor of claimant, we need not address the issues
raised by claimant in his appeal filed against Support Services
and its insurer, Record No. 0842-00-1. Therefore, we dismiss
claimant's appeal as moot.
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Support Services, and his disability and need for medical
treatment beginning in December 1998, the commission found as
follows:
[C]laimant missed only a couple of days from
work for medical appointments following the
July 30 incident, and then continued working
until December 1, 1998. Near this latter
date, the claimant sustained another injury
to his ankle, when it gave way while he was
walking on a concrete surface. Following
this injury, Dr. [Peter] Jacobson imposed
light duty restrictions, and scheduled
surgery.
. . . The evidence shows only a brief period
of disability following the July 30
accident. According to Dr. Jacobson,
determining the contribution of this
incident to the present disability and need
for medical treatment is "crystal ball
stuff," and the July 30 accident was a
"reflection" of the pre-existing
instability. On this evidence, the causal
relationship [between the July 30 accident
and the December 1 disability] is merely
speculative, and is not proven by a
preponderance of the evidence.
The commission's findings are supported by credible
evidence, including claimant's testimony and the medical
records, deposition, and opinions of Dr. Jacobson. Based upon
Dr. Jacobson's deposition testimony, his reports, and claimant's
medical records, viewed in their entirety, the commission, as
fact finder, could reasonably infer that the July 30, 1998
incident was a temporary aggravation of claimant's pre-existing
right ankle problems, not a contributing cause to his ankle
instability which resulted in his disability and need for
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surgery after December 1, 1998. 2 "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).
For these reasons, we affirm the commission's decision.
Record No. 0799-00-2 -- Affirmed.
Record No. 0842-00-2 –- Dismissed.
2
Chesapeake argues in its brief that no specific accident
caused claimant's ankle instability and subsequent need for
surgery. Chesapeake asserts that the evidence showed that
claimant's ankle instability was caused by a series of accidents
and that claimant could not prove which accident caused his
post-December 1998 problems. Chesapeake did not make this
argument before the commission. Accordingly, we will not
consider it for the first time on appeal. See Rule 5A:18.
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