McMurphy Coal Co. v. Eddie Lee Miller

• Court: Court of Appeals of Virginia
• Decided: October 31, 1995
• Docket: 1389953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

McMURPHY COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY

v. Record No. 1389-95-3 MEMORANDUM OPINION * PER CURIAM EDDIE LEE MILLER OCTOBER 31, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (S. T. Mullins; Street, Street, Street, Scott & Bowman, on brief), for appellants.

(Paul L. Phipps; Wolfe & Farmer, on brief), for appellee.

McMurphy Coal Co. and its insurer (hereinafter collectively

referred to as "employer") contend that the Workers' Compensation

Commission erred in finding that (1) Eddie L. Miller proved he

sustained an injury by accident arising out of and in the course

of his employment on November 13, 1992; and (2) a causal

relationship exists between Miller's disc herniation and

resulting disability and the November 13, 1992 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.

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

On appeal, we view the evidence in the light most favorable

to the prevailing party below. R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So

viewed, the evidence proved that, on November 13, 1992, while

working for employer as a scoop operator, Miller ran over a rock,

which caused his head and shoulders to hit the mine roof. He

felt pain over his entire body, which subsided after

approximately fifteen minutes. On that same day, he told his

supervisor, Bobby Ridings, about the accident. Miller's back

pain gradually worsened throughout December 1992. On December

28, 1992, he was pulling cable into a scoop and felt severe back

pain. This incident was witnessed by Ridings. On December 30, 1992, Miller sought medical treatment from

Dr. Wolfgang Zahnke, a general surgeon. Miller told Dr. Zahnke

that his back pain began approximately one month earlier. An MRI

performed in January 1992 revealed that Miller suffered from a

herniated disc at the L5-S1 level on the right.

On February 2, 1993, Miller's physical therapist noted that

Miller attributed his back injury to an incident at work on

November 16, 1992, when he was operating a scoop machine and ran

over a rock.

On February 10, 1992, Miller told Dr. S.C. Kotay, an

orthopedic surgeon, that he injured his back on November 13,

1992, when he ran over a rock while operating a scoop machine at

2 work. In his February 12, 1993 Attending Physician's Report, Dr.

Kotay attributed Miller's disc herniation and resulting

disability to the November 13, 1992 incident.

Dr. Phillip O. Tibbs, a neurosurgeon, who performed surgery

on Miller's back, opined that the November 1992 accident caused

Miller's disc herniation and subsequent surgery.

Miller gave two recorded statements to employer's

representatives, one on February 8, 1993 and one on March 11,

1993. In both statements, Miller mentioned the November 13, 1992

incident, but he acknowledged that he was unsure of the exact

cause of his back injury.

Injury by Accident

"In order to carry [the] burden of proving an 'injury by

accident,' a claimant must prove that the cause of [the] injury

was an identifiable incident or sudden precipitating event and

that it resulted in an obvious sudden mechanical or structural

change in the body." Morris v. Morris, 238 Va. 578, 589, 385

S.E.2d 858, 865 (1989). The commission found that Miller

sustained an injury by accident arising out of and in the course

of his employment on November 13, 1992. Miller's undisputed

testimony, essentially corroborated by Ridings, provides ample

credible evidence to support the commission's finding. Thus,

that finding is conclusive on this appeal. James v. Capitol

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989).

3 In rendering its decision, the commission also considered

the various medical histories and Miller's recorded statements,

and resolved any conflicts in this evidence in favor of Miller. 1

"In 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 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.

Causation

"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).

The medical records and opinions of Drs. Kotay and Tibbs

provide credible evidence that link Miller's disc herniation,

surgery, and disability to the November 13, 1992 injury by

accident.

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

1 In a March 21, 1995 opinion, we remanded this case to the commission for it to consider all relevant evidence, including the medical histories, in order to determine whether Miller proved that he sustained a compensable injury. McMurphy Coal Co. v. Miller, 20 Va. App. 57, 455 S.E.2d 265 (1995).