Quebecor Printing, Inc. v. Lesa W. Simms

• Court: Court of Appeals of Virginia
• Decided: April 9, 2002
• Docket: 3140012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Agee and Senior Judge Coleman

QUEBECOR PRINTING, INC. AND AMERICAN PROTECTION INSURANCE COMPANY MEMORANDUM OPINION* v. Record No. 3140-01-2 PER CURIAM APRIL 9, 2002 LESA W. SIMMS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(S. Vernon Priddy III; Patsy L. Mundy; Sands Anderson Marks & Miller, on briefs), for appellants.

(Thomas J. Schilling; Law Offices of Thomas J. Schilling, on brief), for appellee.

Quebecor Printing, Inc. and its insurer (hereinafter

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

Commission erred in (1) finding that Lesa W. Simms (claimant)

proved that her right knee condition constituted a compensable

consequence of her April 29, 1999 compensable left knee injury;

(2) awarding benefits for claimant's right knee condition which

resulted from a compensable consequence, a gait disturbance, of

the left knee; and (3) relying upon medical histories alone to

establish the cause of claimant's right knee condition. Upon

reviewing the record and the parties' briefs, we conclude that

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. this appeal is without merit. Accordingly, we summarily affirm

the commission's decision. Rule 5A:27.

I.

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). "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). Furthermore, "[q]uestions

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).

Claimant's treating orthopedic surgeon, Dr. Kenneth Zaslav,

opined on December 8, 2000, as follows:

Regarding your second question, I do believe that the current medical treatment to [claimant's] right knee is related to an industrial accident injury on 4/29/99 in the following way:

Ms. Simms had to rely on her right knee more during the period of time when her left knee was being treated and during her post op course, and I believe this exacerbated an underlying patellar malalignment, causing a worsening of symptoms.

Dr. Herman Nachman, who reviewed claimant's medical records

for employer, opined in a letter dated April 10, 2001 that

- 2 - claimant's right knee problem was not causally related to the

April 29, 1999 compensable left knee injury.

As fact finder, the commission was entitled to weigh the

medical evidence. It did so, and accepted the opinion of the

treating physician, Dr. Zaslav, while rejecting the opinion of

Dr. Nachman, who had never examined or treated claimant. The

commission concluded, "the weight of the evidence supports

claimant's contention that her right knee problems are a

compensable consequence of her April 29, 1999 left knee injury."

"'[W]hen an attending physician is positive in his diagnosis

. . . , great weight will be given by the courts to his

opinion.'" Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 439, 339 S.E.2d 570, 572 (1986) (citations omitted).

Dr. Zaslav's medical records and opinions constitute

credible evidence to support the commission's finding. "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).

II. and III.

On appeal, employer relies upon Amoco Foam Prods. Co. v.

Johnson, 257 Va. 29, 510 S.E.2d 443 (1999), to argue that a

compensable consequence of a compensable consequence is not an

awardable condition. In doing so, employer contends claimant's

right knee condition is not compensable because it resulted from - 3 - a compensable consequence of a gait disturbance, which was a

compensable consequence of claimant's initial left knee injury.

Employer also argues that the commission erred in relying upon

the medical histories claimant supplied to her physicians to

provide a credible account of how her right knee condition

occurred, where claimant did not testify. Employer did not

raise either of these arguments before the deputy commissioner

or in its written statement filed on review before the full

commission.

Any theory of recovery or argument not raised before the

commission will not be considered by this Court for the first

time on appeal. See Rule 5A:18; see also Kendrick v. Nationwide

Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).

Accordingly, we will not consider these arguments for the first

time on appeal. Moreover, the record does not reflect any

reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.

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

Affirmed.

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