Stone Container Corporation v. Evelyn M. Clark

• Court: Court of Appeals of Virginia
• Decided: February 4, 1997
• Docket: 1861963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

STONE CONTAINER CORPORATION MEMORANDUM OPINION * v. Record No. 1861-96-3 PER CURIAM FEBRUARY 4, 1997 EVELYN M. CLARK

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Martha White Medley; Daniel, Vaughan, Medley & Smitherman, on brief), for appellant. (Charles W. O'Donnell, on brief), for appellee.

Stone Container Corporation (employer) contends that the

Workers' Compensation Commission (commission) erred in finding

that (1) Evelyn M. Clark (claimant) sustained an injury by

accident arising out of and in the course of her employment on

April 3, 1995; and (2) claimant's back condition and resulting

disability were causally related to the April 3, 1995 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.

I.

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 § 17-116.010 this opinion is not designated for publication. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "In

order to carry [her] burden of proving an 'injury by accident,' a

claimant must prove that the cause of [her] 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).

Claimant testified, that on April 3, 1995 while in the

course of her employment, she lifted a twenty pound bundle of

folded cardboard boxes onto an adjacent fifty-eight inch stack

and felt a "pulling sensation" in her lower back and left leg.

Claimant's testimony, which is not inconsistent with the

histories of her accident as recorded in the medical records,

provides credible evidence to support the commission's finding

that she proved an injury by accident arising out of and in the

course of her employment on April 3, 1995. Accordingly, this

finding is conclusive upon us. II.

"The employer takes the employee as [she] is and if the

employee is suffering from some physical infirmity, which is

aggravated by an industrial accident, the employer is responsible

for the end result of such accident." McDaniel v. Colonial

Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225, 228

(1986).

The commission awarded claimant temporary total disability

2 benefits, holding that her April 3, 1995 injury by accident

materially aggravated a preexisting condition. In so ruling, the

commission found as follows: The claimant reported her injury to her supervisor, Gravely, on the night it occurred. She sought medical treatment during the early morning hours of April 4, 1995, and gave a history of injuring her back at work. Although the claimant admits a prior history of back problems stemming from a 1991 injury, we find it significant that she had received no medical treatment for this condition since April 1993. Additionally, she had missed no time from work due to her back condition during 1993, 1994, and the first three months of 1995 preceding her accident. Dr. [Richard L.] Rauck, who has extensively treated the claimant, reported that the accident of April 3, 1995, aggravated her preexisting condition causing it to become symptomatic.

We must uphold the commission's findings of fact if they are

supported by credible evidence. James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). The

determination of causation is a factual finding. Ingersoll-Rand

Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).

Moreover, "[q]uestions raised by conflicting medical opinion must

be decided by the commission." Penley v. Island Creek Coal Co.,

8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).

In its role as fact finder, the commission was entitled to

weigh the medical evidence and to accept Dr. Rauck's opinion

regarding causation. The commission was also entitled to reject

the contrary opinion of Dr. Thomas Wagner, who examined claimant

at employer's request. Dr. Rauck's opinion, as well as the

3 medical records and claimant's testimony, constitute credible

evidence to support the commission's decision. "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).

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

Affirmed.