COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Senior Judge Hodges

Argued at Richmond, Virginia

HERITAGE HALL BLACKSTONE AND

THE VIRGINIA INSURANCE RECIPROCAL

MEMORANDUM OPINION* BY

v. Record No. 0036-99-2 JUDGE WILLIAM H. HODGES

OCTOBER 19, 1999

TEMPERANCE A. HENLEY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Andrea L. Bailey (Crews & Hancock, P.L.C., on

brief), for appellants.

No brief or argument for appellee.

Heritage Hall Blackstone and its insurer (hereinafter

referred to as "employer") appeal a decision of the Workers'

Compensation Commission (commission) awarding benefits to

Temperance A. Henley (claimant). Employer contends that the

commission erred in finding that claimant proved that her

cervical disc condition and March 2, 1998 surgery were causally

related to her compensable July 17, 1996 injury by accident.

Finding no error, we affirm the commission's decision.

"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).

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

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

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

So viewed, the evidence established that on July 17, 1996,

claimant sustained a compensable accident while working for

employer as a charge nurse. The accident resulted in a cervical

and thoracic strain. She testified that a 264 pound patient

rolled onto her arm. At that time, she initially felt pain in

her arm and neck, and later felt numbness.

Claimant sought medical treatment two days later from Dr.

Stacey Katany, who noted paraspinal muscle spasm on the right

side involving the C6-C7 region as well as the trapezius and

rhomboid muscles. Dr. Katany released claimant to return to

work on July 22, 1996 without restrictions.

Between July 22, 1996 and October 1997, claimant continued

to work, but did not perform her normal duties. Claimant's

co-worker, Jennifer Grubb, corroborated claimant's testimony

that during the fifteen-month period after the July 1996

accident, claimant was in a great deal of pain and required the

assistance of other employees to help her with her duties.

Claimant also limited her activities outside of work due to

episodes of pain. Claimant admitted that she did not seek

further medical attention between July 1996 and October 1997 for

her neck or shoulder problem.

On October 9, 1997, claimant sought treatment with Dr.

Cliff Walton for shoulder pain. Dr. Walton recorded a history

of knots in claimant's right shoulder since her work injury with

occasional tingling in her right hand. He also noted muscle

spasms in her arm and shoulder. On October 27, 1997 and

November 20, 1997, claimant was treated by Dr. Melissa Bradner

for complaints of shoulder and neck pain. Dr. Bradner later

confirmed that both visits were for complaints related to

claimant's July 17, 1996 work-related accident.

On November 11, 1997, upon referral from Dr. Bradner, Dr.

John Ayres, an orthopedist, examined claimant. Dr. Ayres

recorded a history of the July 1996 work-related accident and

that claimant "had intermittent pains that Motrin would handle

until about a month and half ago, when the discomfort in her

back seemed to get progressively worse." Dr. Ayres diagnosed

chronic cervical thoracic and right shoulder strain. Dr. Ayres

noted in January 1998, that a December 1997 MRI indicated a

possible cervical disc injury at the C5-6 level on the right

side.

On February 6, 1998, Dr. Kenneth Kiluk, a neurosurgeon,

examined claimant. Dr. Kiluk recorded a history of the July

1996 work-related accident and noted that claimant continued to

work despite ongoing pain. He noted that in October 1997,

claimant's pain became considerably worse. On March 2, 1998,

Dr. Kiluk performed an anterior cervical disc resection at the

C5-6 level on claimant. In his February 12, 1998 Attending

Physician's Report, Dr. Kiluk causally related the cervical disc

injury to the July 17, 1996 work-related accident. In his March

2, 1998 Operative Report, Dr. Kiluk noted that the causal

connection was "difficult to determine" in light of the fact

that claimant did not seek medical treatment for her condition

for about one and one-half years after the accident. He did

note that she was "having increasing symptoms of right radicular

pain with some triceps weakness and some numbness in the dorsum

of her hand."

On May 20, 1998, Dr. W.E. Thompson reviewed claimant's

medical records upon employer's request. Dr. Thompson opined

that "there is no causal relationship whatsoever between the

cervical procedure of March 2, 1998 and the work injury of July

17, 1996."

In ruling that claimant "persuasively established that her

cervical disc injury was caused by the compensable work

accident," the commission found as follows:

[A]fter her July 17, 1996, accident, the

claimant was never able to resume her normal

activities, and continued to suffer pain

from her injury. The claimant's testimony

in that regard is fully corroborated by her

co-worker's testimony, and is consistent

with the histories recorded by the health

care providers. . . .

A finding of causation is also

supported by the medical record. Dr.

Bradner . . . confirmed that the treatment

beginning October 27, 1997, was related to

the July 1996 work accident. Dr. Ayres

. . . recorded an accurate history of the

. . . accident and [claimant's] ensuing

symptoms. . . . Although he made no

specific statement regarding causation, his

diagnosis of the chronic strains juxtaposed

to the accurate history certainly implies a

causal relationship. Dr. Kiluk . . .

provided an Attending Physician's Report

which specifically supported the causal

relationship.

"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). In its role as fact finder, the

commission was entitled to weigh the medical evidence. The

commission did so and accepted the opinions of Drs. Bradner,

Ayres, and Kiluk, while rejecting the contrary opinion of Dr.

Thompson, who never examined or treated claimant. The

commission considered Dr. Kiluk's statement in his operative

report that the causal relationship "is difficult to determine."

The commission was entitled to conclude that Dr. Kiluk's

statement did "not necessarily negate his previously articulated

opinion that the cervical disc injury was caused by the work

accident." "Questions 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). The

medical records and opinions of Drs. Bradner, Ayres, and Kiluk,

along with the testimony of claimant and her co-worker,

constitute credible evidence supporting the commission's

decision. "[T]he commission was free to credit claimant's

testimony at the hearing as a basis for its finding of

causation. The fact that contrary evidence may appear in the

record 'is of no consequence if there is credible evidence to

support the commission's finding.'" Dollar General Store v.

Cridlin, 22 Va. App. 171, 177, 468 S.E.2d 152, 155 (1996)

(quoting 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.

* Pursuant to Code 17.1-413, recodifying Code

17-116.010, this opinion is not designated for publication.

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