B.A. Mullican Lumber etc. v. Larry Hubbard

• Court: Court of Appeals of Virginia
• Decided: November 6, 2001
• Docket: 1771013
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Overton

B.A. MULLICAN LUMBER & MANUFACTURING AND SECURITY INSURANCE COMPANY OF HARTFORD MEMORANDUM OPINION* v. Record No. 1771-01-3 PER CURIAM NOVEMBER 6, 2001 LARRY HUBBARD

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Ramesh Murthy; Lisa Frisina Clement; Penn Stuart, on brief), for appellants.

(P. Heith Reynolds; Wolfe, Farmer, Williams & Rutherford, on brief), for appellee.

B.A. Mullican Lumber & Manufacturing and Security Insurance

Company of Hartford (hereinafter referred to as "employer")

contend that the Workers' Compensation Commission erred in

finding that Larry Hubbard proved that his April 24, 2000

surgery and subsequent disability were causally related to his

compensable July 2, 1999 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. 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.

* 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). "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).

On July 2, 1999, claimant suffered a compensable injury by

accident which caused a left inguinal hernia. Employer

stipulated that claimant was disabled from September 10, 1999,

the date of his surgery for ventral and left inguinal hernia

repairs by Dr. William Garrett, through October 10, 1999.

On April 24, 2000, Dr. Garrett treated claimant at the

Lonesome Pine Hospital. Dr. Garrett noted that appellant

presented at the emergency room with an apparent recurrent and

incarcerated ventral hernia. Dr. Garrett performed an

exploratory laparotomy, an appendectomy, and an evacuation of

abscess and repair of the ventral hernia. Dr. Garrett rendered

a post-operative diagnosis of a functional bowel obstruction and

recurrence of ventral hernia secondary to perforated vermiform

appendix with intraperitoneal abscess and free feces in the

peritoneal cavity.

In his May 2, 2000 discharge summary, Dr. Garrett noted a

diagnosis of vermiform appendix with peritonitis and sepsis, a

functional small bowel obstruction with recurrent ventral

hernia, hypertension, and atrial fibrillation. Dr. Garrett

- 2 - noted that during the surgery claimant had an appendectomy,

evacuation of abscess and repair of ventral hernia. Dr.

Garrett's findings included a functional bowel obstruction with

recurrence of the ventral hernia secondary to a perforated

vermiform appendix with intraperitoneal abscess and free feces

in the peritoneal cavity.

Employer referred claimant's medical records to

Dr. Andrew P. Kramer for review. Dr. Kramer concluded that

claimant's hernia repair on September 10, 1999 was causally

related to his work accident. Dr. Kramer concluded further that

the "recurrence of [claimant's] ventral hernia is an unfortunate

sequelae of his previous surgery, and most like[ly] exacerbated

by his bout with appendicitis." (Emphasis added.)

"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). Based upon the medical evidence taken

as a whole, the commission concluded that claimant's recurrent

hernia was causally related to his initial work-related hernia.

Credible evidence, including the medical records of Drs. Garrett

and Kramer support the commission's findings. Based upon their

medical records, the commission, as fact finder, could

reasonably infer that "although the recurrent hernia was not a

direct consequence of the initial accident, it is a sequelae of

- 3 - the previous surgery." "'When the primary injury is shown to

have arisen out of and in the course of employment, every

natural consequence that flows from the injury likewise arises

out of the employment, unless it is the result of an independent

intervening cause attributable to claimant's own intentional

conduct.'" Imperial Trash Serv. v. Dotson, 18 Va. App. 600,

606-07, 445 S.E.2d 716, 720 (1994) (quoting Morris v. Badger

Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 283, 348 S.E.2d

876, 879 (1986)).

"If there is evidence, or reasonable inferences can be

drawn from the evidence, to support the Commission's findings,

they will not be disturbed on review, even though there is

evidence in the record to support a contrary finding." Morris,

3 Va. App. at 279, 348 S.E.2d at 877. Accordingly, we affirm

the commission's decision.

Affirmed.

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