County of York Fire & Rescue/VA Municipal v. Dinse

• Court: Court of Appeals of Virginia
• Decided: September 9, 1997
• Docket: 0879974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

COUNTY OF YORK FIRE & RESCUE and VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION * PER CURIAM v. Record No. 0879-97-4 SEPTEMBER 9, 1997

DONALD M. DINSE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Daniel G. Bloor; Midkiff & Hiner, on brief), for appellantS.

(Michael A. Kernbach; Jack A. Burgess & Associates, on brief), for appellee.

County of York Fire & Rescue (hereinafter referred to as

"employer") contends that the Workers' Compensation Commission

erred in finding that (1) Donald M. Dinse, a firefighter, proved

he sustained disability causally related to his hypertension,

entitling him to the presumption contained in Code § 65.2-402(B);

(2) Dinse's hypertension did not pre-exist his employment with

employer; and (3) the employer's evidence failed to rebut the

presumption contained in Code § 65.2-402(B). 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.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.

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).

In holding that Dinse proved he sustained disability

causally related to his hypertension, the commission found as

follows: The medical records indicate that [Dinse] was admitted to the Williamsburg Community Hospital on August 31, 1994, complaining of chest pain. Dr. Steven Cummings diagnosed esophageal spasm, hypertension, and hyperventilation. Dr. Cummings prescribed medication, and sent [Dinse] "home to bed." Dr. Cummings signed a Quick-Fax Report dated August 31, 1994, indicating a diagnosis of hypertension and chest pain. He recommended modified duty until September 7, 1994. Approximately, six months later, on March 14, 1995, Dr. Cummings, in answering a question posed by the employer, indicated that [Dinse] had not suffered any disability from work as a result of his hypertension. We find [Dinse's] testimony and the contemporaneous medical records more persuasive, and find that [Dinse] did, in fact, suffer disability caused by his hypertension, as indicated in the Quick-Fax Report.

"Medical evidence is not necessarily conclusive, but is

2 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). Furthermore, "[i]n determining whether

credible evidence exists, the appellate court does not retry the

facts, reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses." Wagner

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991). The commission was entitled to accept Dr. Cummings' opinions

contained in the Quick-Fax Report and to give little probative

weight to his opinion rendered six months later. The Quick-Fax

Report, coupled with Dinse's testimony, constitutes credible

evidence to support the commission's finding that Dinse proved he

suffered disability due to his hypertension. "The fact that

there is contrary evidence in the record is of no consequence if

there is credible evidence to support the commission's finding."

Id. II.

Dinse denied ever receiving a diagnosis of hypertension

before he began working for the employer. Dinse's Navy discharge

examination did not contain a diagnosis of hypertension. In

addition, Dinse received a pre-employment physical, which did not

indicate a diagnosis of hypertension. This credible evidence

supports the commission's finding that Dinse was not suffering

from hypertension when he began working for the employer.

3 Therefore, Dinse was entitled to the presumption contained in

Code § 65.2-402(B).

In its role as fact finder, the commission was entitled to

give little probative weight to various medical records generated

after Dinse's date of hire. Some of these records contained

indications of a history of hypertension pre-dating Dinse's

employment. However, the employer failed to produce any medical

records to substantiate a diagnosis of hypertension prior to the

date the employer hired Dinse. III.

Under the circumstances of this case, "the employer must

exclude work-related stress as a contributing factor to rebut the

presumption [provided in Code § 65.2-402(B)]." Duffy v.

Commonwealth of Virginia/Dept. of State Police, 22 Va. App. 245,

251, 468 S.E.2d 702, 705 (1996). Unless we can say as a matter

of law that the employer's evidence met its burden of proof, the

commission's findings are binding and conclusive upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

On October 27, 1994, Dr. Cummings opined that "[Dinse's] job

is definitely stressful, however, and that probably is a factor

in the degree of difficulty that has been experienced in

controlling his blood pressure in the past." The employer

presented no evidence excluding Dinse's work as a contributing

cause of his hypertension. Thus, we cannot say as a matter of

4 law that the employer's evidence rebutted the statutory

presumption provided under Code § 65.2-402(B).

For these reasons, we affirm the commission's decision.

Affirmed.