Lowe's Lynchburg, No. 0082 v. Cynthia Andrews

• Court: Court of Appeals of Virginia
• Decided: August 5, 2003
• Docket: 0706033
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Humphreys and Senior Judge Overton

LOWE'S OF LYNCHBURG, NO. 0082/ LOWE'S HOME CENTERS, INC. MEMORANDUM OPINION* v. Record No. 0706-03-3 PER CURIAM AUGUST 5, 2003 CYNTHIA ANDREWS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Dale W. Webb; Monica Taylor Monday; Gentry Locke Rakes & Moore, on brief), for appellant.

(Craig P. Tiller; Davidson, Sakolosky, Moseley & Tiller, P.C., on brief), for appellee.

Lowe's of Lynchburg, No. 0082/Lowe's Home Centers, Inc.

contends the Workers' Compensation Commission erred in finding

that Cynthia Andrews proved that her upper back, thoracic back,

and shoulder blade injuries were causally related to her

compensable October 16, 2000 injury by accident. Upon reviewing

the record and the parties' briefs, 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. 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). So

viewed, the evidence proved that Andrews heard her back pop and

felt pain on October 16, 2000, while lifting a fifty to

eighty-pound countertop at work. She described the pain as

being at her "belt line," which she indicated to be at her

middle back. The day after the accident, she began to

experience pain in her shoulder blades, across her upper back,

in the center of her middle back, and down her left leg.

Andrews had not suffered from any back pain before October 16,

2000. Lowe's accepted Andrews' lower back injury as

compensable. Thus, the compensability of the lower back injury

is not contested on appeal.

In ruling that Andrews proved that her upper and mid-back

problems were causally related to her compensable October 16,

2000 injury by accident, the commission found as follows:

[Andrews] testified that within a few days of the injury by accident, she suffered back pain in various areas of her back. The fact that she did not complain to Dr. deGuzman about back pain, other than her low back, is not fatal to her case. The . . . Act does not require a claimant to report all of her causally related symptoms to a physician within several days.

The . . . medical record reflects that [Andrews] described additional back pain and that she consistently attributed her problems to lifting a countertop in October 2000. No physician suggested another source of her condition or opined that repetitive activities caused the pain. Dr. Diminick repeatedly advised that he treated the claimant for thoracic pain resulting from a - 2 - work-related lifting accident. Notably, Dr. Albers emphasized [Andrews'] reports of different areas of back pain. He concluded that [Andrews'] symptoms and treatment were causally related to the industrial accident. Similarly, Dr. Joseph and Schneider, [the physical therapist,] noted a year-long history of thoracic pain from the work-related lifting incident. There is no medical evidence to the contrary.

"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). Andrews'

testimony, coupled with the medical records and opinions of

Dr. Diminick, Dr. Albers, and Dr. Joseph, constitutes credible

evidence to support the commission's findings. "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). As fact finder, the commission weighed the totality of

the medical evidence, and concluded that it was sufficient to

sustain Andrews' burden of proof.

Lowe's contention that the commission should have denied

Andrews' claim pursuant to Massie v. Firmstone, 134 Va. 450, 114

S.E. 652 (1922), lacks merit. It argues she was bound by her

testimony on cross-examination that the soreness in her upper

back and shoulders a few days after the accident, but not "far

down the road," may have been caused by lifting countertops all

- 3 - day "as far as [she] know[s]." First, "[t]he Massie doctrine

applies only to a party litigant's statements of fact that are

within the litigant's own knowledge, and not to statements of

opinion." Braden v. Isabell K. Horseley Real Estate, Ltd., 245

Va. 11, 16, 425 S.E.2d 481, 484 (1993). Second, the rule does

not apply to "an adverse statement standing in isolation from

the litigant's testimony as a whole." Baines v. Parker, 217 Va.

100, 105, 225 S.E.2d 403, 407 (1976). Andrews' testimony as a

whole, which explains the facts concerning her injury, clearly

described a pop in her back and pain around her belt line when

she lifted a particular countertop. Andrews testified that she

considered "her belt line" to be near her middle back and also

testified that she had pain in different parts of her back the

day after the accident. "To establish an "injury by accident,"

. . . [i]t is not necessary to show an immediate onset of the

symptoms of an injury." Turcios v. Holiday Inn Fair Oaks, 24

Va. App. 509, 518 n.1, 483 S.E.2d 502, 504 n.1 (1997). The fact

finder was entitled to weigh the totality of Andrews' testimony

within the context of the other evidence and resolve any minor

discrepancies in her favor. "[T]he commission's conclusions

upon conflicting inferences, reasonably drawn from proven facts,

are . . . binding on appeal." Watkins v. Halco Engineering,

Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).

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

Affirmed - 4 -