CPF Corporation & Safeguard Insurance Co. v. Benbow

• Court: Court of Appeals of Virginia
• Decided: July 31, 2001
• Docket: 0768014
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Retired Judge Duff*

CPF CORPORATION AND SAFEGUARD INSURANCE COMPANY MEMORANDUM OPINION ** v. Record No. 0768-01-4 PER CURIAM JULY 31, 2001 ROBERT L. BENBOW

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Heather K. Bardot; Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on brief), for appellants.

(James F. Green; Ashcraft & Gerel, LLP., on brief), for appellee.

CPF Corporation and its insurer (hereinafter referred to as

"employer") contend that the Workers' Compensation Commission

erred in finding that Robert L. Benbow proved (1) he sustained

an injury by accident arising out of his employment on August

19, 1999; and (2) he sustained disability from August 19, 1999

through May 14, 2000 causally related to the August 19, 1999

injury by accident. Upon reviewing the record and the briefs of

the parties, we conclude that this appeal is without merit.

* Retired Judge Charles H. Duff took part in the consideration of this case by designation pursuant to Code § 17.1-400(D). ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. Accordingly, we summarily affirm the commission's decision. See

Rule 5A:27.

I. Injury by Accident

"To recover benefits, the claimant must establish by a

preponderance of the evidence that he suffered an injury by

accident 'arising out of and in the course of [his] employment,'

and 'that the conditions of the workplace . . . caused the

injury.'" Falls Church Const. Corp. v. Valle, 21 Va. App. 351,

359-60, 464 S.E.2d 517, 522 (1995) (citations omitted). A

finding by the commission that an injury did or did not arise

out of the employment "is a mixed question of law and fact and

is, thus, reviewable on appeal." Jones v. Colonial Williamsburg

Found., 8 Va. App. 432, 434, 382 S.E.2d 300, 301 (1989). The

phrase "arising out of" refers to the origin or cause of the

injury. County of Chesterfield v. Johnson, 237 Va. 180, 183,

376 S.E.2d 73, 74 (1989). Plumb Rite Plumbing Service v.

Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).

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). In

ruling that Benbow proved he sustained a compensable injury by

accident to his back on August 19, 1999, while lifting a soap

container, the commission found as follows:

[W]e are cognizant that the claimant appeared at first to indicate that he may

- 2 - have merely been bending when he felt the pain; however, in subsequent questioning by the deputy commissioner he indicated having lifted the container. We also note that his pro se Claim for Benefits form also indicates an injury while lifting a 50-gallon jug by himself. The medical records prior to August 25, 1999, do not indicate any low back or leg symptoms. It is on this date that a sudden numbness and ataxia in both legs with low back pain was first noted, as well as a bilateral limp. In the September 14, 1999, note a specific incident while lifting a 50-pound barrel is also mentioned. Dr. [Michael W.] Dennis likewise in his first examination refers to an injury while doing heavy lifting. Dr. Dennis also has indicated that the claimant had a low back injury as a result of a work injury. When the evidence is considered in light of the claimant's somewhat rambling and inarticulate testimony, and the finding by the deputy commissioner, who had an opportunity to observe the witnesses, we find that a compensable injury by accident on August 19, 1999, while lifting a soap container has been established.

Evidence the commission found to be credible, including

Benbow's testimony, which was corroborated by his pro se Claim

for Benefits Form and the medical histories, amply supports the

commission's finding. As fact finder, the commission was

entitled to weigh Benbow's testimony, the substance of the Claim

for Benefits Form he completed, and the content of the medical

histories. Upon that evidence, the commission could conclude

that Benbow proved he sustained an injury to his lower back

while lifting the soap container. In other words, credible

evidence proved that a condition of the workplace, which existed

- 3 - in the course of claimant's employment, i.e., lifting the soap

container, caused his injury.

II. Disability

Dr. Dennis began treating Benbow on October 4, 1999. In

his April 19, 2000 response to written questions, Dr. Dennis

opined that the August 19, 1999 work injury caused Benbow's low

back condition and that Benbow was disabled as a result of that

condition. In response to an additional question whether

Benbow's work-related low back injury in and of itself was

totally disabling, Dr. Dennis replied "yes." Dr. Dennis last

examined Benbow on March 6, 2000 and instructed him to return in

six weeks.

The commission was entitled to accept Dr. Dennis's opinions

and to reject the opinion of Dr. Bruce Ammerman, who did not

examine Benbow before May 15, 2000. "Medical evidence 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). "Questions raised by conflicting

medical opinions must be decided by the commission." Penley v.

Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236

(1989). "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." Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Dr. Dennis's

- 4 - opinions constitute credible evidence to support the

commission's finding that Benbow was totally disabled from

August 19, 1999 through May 14, 2000, as a result of the August

19, 1999 injury by accident.

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

Affirmed.

- 5 -