COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia
SKYLINE EXCAVATING COMPANY, INC. AND MARYLAND CASUALTY COMPANY MEMORANDUM OPINION * BY v. Record No. 1956-96-3 JUDGE CHARLES H. DUFF APRIL 29, 1997 JOHN K. ABSHIRE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Mark M. Caldwell, III (Sarah Y.M. Kirby; Mary Louise Kramer; Sands, Anderson, Marks & Miller, on briefs), for appellants.
Howard A. Herzog for appellee.
Skyline Excavating Company, Inc. and its insurer
(hereinafter collectively referred to as "employer") appeal a
decision of the Workers' Compensation Commission awarding
compensation benefits to John K. Abshire (claimant). Employer
contends that the commission erred in finding that claimant's
medical treatment, surgery, and disability were causally related
to an October 3, 1994 work-related accident. Finding no error,
we affirm.
I. The October 3, 1994 Incident
Claimant began performing construction work for employer in
October 1994. On October 3, 1994, employer directed claimant and
his co-workers to replace a water line in an alley near a public
road. During this task, Tommy Johnson and Jimmy Moran * Pursuant to Code § 17-116.010 this opinion is not designated for publication. jackhammered rock in a three-foot deep ditch so that they could
place a joint of pipe in the ditch. At the time of claimant's
alleged accident, Dave Vatter operated a backhoe, removing rocks
from the ditch. Employer directed claimant to hold a flanged
steel digging bar next to an old water line located in the ditch
so that the backhoe bucket would not accidentally strike and
break the old water line.
According to claimant's testimony, he was holding the
digging bar when the backhoe bucket hit the left side of his
body, causing him to curl over the bucket. When the bucket
stopped, it threw him across the alley onto a dirt embankment,
whereupon he immediately started vomiting. Claimant removed his
hard hat and tossed it into the alley, and walked up the hill
with Johnson to the employer's van. Claimant vomited a couple of
times on the way to the van. When he got into the van, his
stomach and back hurt. He then got out of the van, lay on the
ground, and vomited again. Eventually, Mickey Cash, claimant's
supervisor, took claimant to the Augusta County Hospital
emergency room. Claimant told Cash about the incident in a
manner consistent with his hearing testimony. Claimant attempted
to return to work two days after the accident, but was unable to
work due to pain in his lower back, stomach, and right leg. Claimant's wife testified that when she arrived at the
jobsite on October 3, 1994, Johnson told her that the backhoe
bucket hit claimant and then it threw him onto a bank.
2 Vatter testified that the backhoe bucket slid off a rock and
hit the digging bar. Vatter believed the bar struck claimant
although he was looking in the ditch rather than directly at
claimant. After the incident, claimant told Vatter that his leg
hurt and he felt sick.
Moran, who was twenty-five to thirty feet away from where
the accident occurred, and Johnson, who was fifteen feet away,
testified that although the backhoe bucket hit the digging bar
held by claimant, the bucket did not hit claimant himself and
claimant was not thrown or knocked by the bucket. Johnson
admitted that the digging bar being hit by the backhoe bucket may
have "jarred" claimant. Cash testified that he was on the jobsite on October 3,
1994, but he did not see the incident. When Cash took claimant
to the hospital after the incident, claimant first told Cash that
the backhoe had hit him, but later claimant stated that the
digging bar had hit him in the back or the side.
II. The Medical Evidence
Drs. Peter Puzio, a neurologist, and Harold F. Young, a
neurosurgeon, treated claimant. Each doctor recorded a history
of a backhoe striking claimant and throwing or knocking him ten
feet.
On May 18, 1995, Dr. Young opined that claimant's spinal
pain was severe enough to require surgery, and that this pain was
caused by the October 3, 1994 accident wherein claimant "was
3 struck and thrown." Dr. Young noted that claimant told him he
had not suffered from any spinal pain prior to October 3, 1994.
Dr. Young further opined that surgery on claimant's lumbar spine
and possibly surgery on his thoracic and/or cervical spine were
necessitated by the October 3, 1994 accident. On June 13, 1995,
Dr. Young performed an L4-S1 fusion on claimant's back.
On August 29, 1995, Dr. Young opined that the impact
claimant sustained in the accident caused his asymptomatic
spondylolysis and spondylolisthesis to become symptomatic. Dr.
Young reiterated his opinion that claimant's need for surgery
resulted directly from the October 3, 1994 accident. Dr. Young
based this opinion upon the facts that claimant was not
experiencing any back pain or disability before October 3, 1994,
and that he experienced severe lower back pain and intermittent
leg pain and numbness after the incident. On November 20, 1995, in response to a report generated by
Dr. Herman Nachmann upon his review of claimant's medical records
for employer, Dr. Puzio, who disagreed with Dr. Nachmann's
opinions, opined that claimant sustained significant traumatic
effects to his spine as a result of the October 3, 1994 incident.
Although claimant denied any prior history of back problems,
other medical evidence indicated that claimant suffered from
asymptomatic spondylolysis and spondylolisthesis prior to the
October 3, 1994 incident, and furthermore, had suffered a 1991
work-related back injury.
4 III. The Commission's Decision
The commission found that claimant's post-October 5, 1994
disability, medical treatment, and surgery were causally related
to an October 3, 1994 incident. The commission accepted the
testimony of claimant's co-workers, concluding that the backhoe
bucket did not hit claimant nor was he thrown ten feet. The
commission concluded that claimant was holding the digging bar
against his left leg and the backhoe bucket struck the digging
bar, leaving claimant dazed and in shock. The commission relied
upon the opinions of Drs. Young and Puzio to find a causal
connection between the accident and claimant's disability and
surgery. IV. Analysis
"Under our standard of review . . . factual findings are
conclusive and binding on this Court. . . . Furthermore, the
probative weight the commission gave the conflicting testimony is
similarly within its province and not subject to our review." Birdsong Peanut Co. v. Cowling, 8 Va. App. 274, 279, 381 S.E.2d
24, 27-28 (1989). As fact finder, the commission concluded, as
it was entitled to do, based upon claimant's co-workers'
testimony, that the accident occurred when claimant was holding
the digging bar against his left leg and the backhoe bucket
struck the digging bar. "'If there is evidence, or reasonable
inferences can be drawn from the evidence, to support the
Commission's findings, they will not be disturbed on review, even
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia
SKYLINE EXCAVATING COMPANY, INC. AND MARYLAND CASUALTY COMPANY MEMORANDUM OPINION * BY v. Record No. 1956-96-3 JUDGE CHARLES H. DUFF APRIL 29, 1997 JOHN K. ABSHIRE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Mark M. Caldwell, III (Sarah Y.M. Kirby; Mary Louise Kramer; Sands, Anderson, Marks & Miller, on briefs), for appellants.
Howard A. Herzog for appellee.
Skyline Excavating Company, Inc. and its insurer
(hereinafter collectively referred to as "employer") appeal a
decision of the Workers' Compensation Commission awarding
compensation benefits to John K. Abshire (claimant). Employer
contends that the commission erred in finding that claimant's
medical treatment, surgery, and disability were causally related
to an October 3, 1994 work-related accident. Finding no error,
we affirm.
I. The October 3, 1994 Incident
Claimant began performing construction work for employer in
October 1994. On October 3, 1994, employer directed claimant and
his co-workers to replace a water line in an alley near a public
road. During this task, Tommy Johnson and Jimmy Moran * Pursuant to Code § 17-116.010 this opinion is not designated for publication. jackhammered rock in a three-foot deep ditch so that they could
place a joint of pipe in the ditch. At the time of claimant's
alleged accident, Dave Vatter operated a backhoe, removing rocks
from the ditch. Employer directed claimant to hold a flanged
steel digging bar next to an old water line located in the ditch
so that the backhoe bucket would not accidentally strike and
break the old water line.
According to claimant's testimony, he was holding the
digging bar when the backhoe bucket hit the left side of his
body, causing him to curl over the bucket. When the bucket
stopped, it threw him across the alley onto a dirt embankment,
whereupon he immediately started vomiting. Claimant removed his
hard hat and tossed it into the alley, and walked up the hill
with Johnson to the employer's van. Claimant vomited a couple of
times on the way to the van. When he got into the van, his
stomach and back hurt. He then got out of the van, lay on the
ground, and vomited again. Eventually, Mickey Cash, claimant's
supervisor, took claimant to the Augusta County Hospital
emergency room. Claimant told Cash about the incident in a
manner consistent with his hearing testimony. Claimant attempted
to return to work two days after the accident, but was unable to
work due to pain in his lower back, stomach, and right leg. Claimant's wife testified that when she arrived at the
jobsite on October 3, 1994, Johnson told her that the backhoe
bucket hit claimant and then it threw him onto a bank.
2 Vatter testified that the backhoe bucket slid off a rock and
hit the digging bar. Vatter believed the bar struck claimant
although he was looking in the ditch rather than directly at
claimant. After the incident, claimant told Vatter that his leg
hurt and he felt sick.
Moran, who was twenty-five to thirty feet away from where
the accident occurred, and Johnson, who was fifteen feet away,
testified that although the backhoe bucket hit the digging bar
held by claimant, the bucket did not hit claimant himself and
claimant was not thrown or knocked by the bucket. Johnson
admitted that the digging bar being hit by the backhoe bucket may
have "jarred" claimant. Cash testified that he was on the jobsite on October 3,
1994, but he did not see the incident. When Cash took claimant
to the hospital after the incident, claimant first told Cash that
the backhoe had hit him, but later claimant stated that the
digging bar had hit him in the back or the side.
II. The Medical Evidence
Drs. Peter Puzio, a neurologist, and Harold F. Young, a
neurosurgeon, treated claimant. Each doctor recorded a history
of a backhoe striking claimant and throwing or knocking him ten
feet.
On May 18, 1995, Dr. Young opined that claimant's spinal
pain was severe enough to require surgery, and that this pain was
caused by the October 3, 1994 accident wherein claimant "was
3 struck and thrown." Dr. Young noted that claimant told him he
had not suffered from any spinal pain prior to October 3, 1994.
Dr. Young further opined that surgery on claimant's lumbar spine
and possibly surgery on his thoracic and/or cervical spine were
necessitated by the October 3, 1994 accident. On June 13, 1995,
Dr. Young performed an L4-S1 fusion on claimant's back.
On August 29, 1995, Dr. Young opined that the impact
claimant sustained in the accident caused his asymptomatic
spondylolysis and spondylolisthesis to become symptomatic. Dr.
Young reiterated his opinion that claimant's need for surgery
resulted directly from the October 3, 1994 accident. Dr. Young
based this opinion upon the facts that claimant was not
experiencing any back pain or disability before October 3, 1994,
and that he experienced severe lower back pain and intermittent
leg pain and numbness after the incident. On November 20, 1995, in response to a report generated by
Dr. Herman Nachmann upon his review of claimant's medical records
for employer, Dr. Puzio, who disagreed with Dr. Nachmann's
opinions, opined that claimant sustained significant traumatic
effects to his spine as a result of the October 3, 1994 incident.
Although claimant denied any prior history of back problems,
other medical evidence indicated that claimant suffered from
asymptomatic spondylolysis and spondylolisthesis prior to the
October 3, 1994 incident, and furthermore, had suffered a 1991
work-related back injury.
4 III. The Commission's Decision
The commission found that claimant's post-October 5, 1994
disability, medical treatment, and surgery were causally related
to an October 3, 1994 incident. The commission accepted the
testimony of claimant's co-workers, concluding that the backhoe
bucket did not hit claimant nor was he thrown ten feet. The
commission concluded that claimant was holding the digging bar
against his left leg and the backhoe bucket struck the digging
bar, leaving claimant dazed and in shock. The commission relied
upon the opinions of Drs. Young and Puzio to find a causal
connection between the accident and claimant's disability and
surgery. IV. Analysis
"Under our standard of review . . . factual findings are
conclusive and binding on this Court. . . . Furthermore, the
probative weight the commission gave the conflicting testimony is
similarly within its province and not subject to our review." Birdsong Peanut Co. v. Cowling, 8 Va. App. 274, 279, 381 S.E.2d
24, 27-28 (1989). As fact finder, the commission concluded, as
it was entitled to do, based upon claimant's co-workers'
testimony, that the accident occurred when claimant was holding
the digging bar against his left leg and the backhoe bucket
struck the digging bar. "'If there is evidence, or reasonable
inferences can be drawn from the evidence, to support the
Commission's findings, they will not be disturbed on review, even
5 though there is evidence in the record to support a contrary
finding.'" Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431
S.E.2d 342, 344 (1993) (quoting Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)).
"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 opinions of
Drs. Young and Puzio, along with the uncontradicted evidence that
before the October 3, 1994 incident, claimant's back condition
was asymptomatic and he had been able to perform heavy labor,
provide credible evidence to support the commission's finding
that the October 3, 1994 incident caused or aggravated claimant's
back conditions resulting in his post-October 5, 1994 disability
and lumbar fusion surgery. The commission was entitled to weigh
the probative value of these medical opinions, and to conclude
that "any inaccuracies in the exact mechanism of the accident are
of minor importance and do not discredit the physicians'
opinions." Because credible evidence supports the commission's findings
that the October 3, 1994 incident occurred as described by
claimant's co-workers, and that it caused claimant's post-October
5, 1994 disability and surgery, those findings are conclusive and
binding upon us.
For the reasons stated, we affirm the commission's decision.
6 Affirmed.