Rappahanock Framing, etc, et al. v Timothy Trent

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
RAPPAHANNOCK FRAMING & TRIM
AND
ERIE INSURANCE EXCHANGE
v. 	Record No. 0979-95-2 	MEMORANDUM OPINION*
PER CURIAM
TIMOTHY LADON TRENT 	SEPTEMBER 5, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jennifer Lee Parrish; Roberts, Ashby & Parrish, on
brief), for appellants. 	Appellants submitting on
brief.
(Carroll E. Smith, on brief), for appellee. 	Appellee
submitting on brief.
Rappahannock Framing & Trim and its insurer (hereinafter
collectively referred to as "employer") appeal from a decision of
the Workers' Compensation Commission awarding benefits to Timothy
Ladon Trent for an April 6, 1994 back injury. 	Employer contends
that (1) no credible evidence supports the commission's finding
that Trent sustained an injury by accident arising out of and in
the course of his employment; (2) the commission erred in not
considering inconsistencies in Trent's medical histories; (3) no
credible evidence supports the commission's award of temporary
total and temporary partial compensation; and (4) no credible
evidence proved that Trent adequately marketed his residual
capacity. 	Finding no error, we affirm.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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).
Factual findings made by the commission will be upheld if
supported by credible evidence. 	James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Trent testified that, on April 6, 1994, while working for
employer as a carpenter, he fell from a six-foot ladder and
landed on his back on the floor. 	Trent's fall was witnessed by
four or five co-workers, including his foreman, Tim Southern.
Trent completed his work shift and returned to work the following
morning. 	However, he was unable to continue working because of
pain.
On April 12, 1994, Trent received medical treatment for low
back and leg pain of a one-week duration at the Mary Washington
Hospital emergency room. 	Trent was excused from work for three
days and referred for orthopedic care. 	The emergency room notes
state that Trent sustained leg and back pain when he stepped into
mud and do not mention the ladder incident. 	Trent testified that
he told the emergency room personnel about both incidents.
On April 18, 1994, Trent was first seen by Dr. Michael B.
O'Brien, an orthopedic surgeon. 	Trent told Dr. O'Brien that he
had stepped into mud and injured his lower back and left leg
about one month before and that he had fallen off of a ladder and
reinjured his back and leg one week before the April 18, 1994

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examination. 	After an MRI revealed a herniated disc and possible
extruded fragment, Dr. O'Brien recommended surgery. 	Dr. O'Brien
opined that Trent was totally disabled as a result of these two
incidents, both of which occurred at work, and noted that Trent
needed to be very careful with his work until he could have the
surgery. 	The surgery was not performed because employer denied
Trent's claim. 	On June 27, 1994, Dr. O'Brien noted Trent's
continuing back complaints and prescribed medication.
Trent stated that he began working part-time in August 1994
performing painting work for various friends. 	He earned
approximately $2000.00 between August 15, 1994 and December 9,
1994. 	In rendering its award, the commission considered the
testimony of Trent's foreman and co-workers concerning the ladder
incident, evidence of other previous injuries Trent may have
sustained, Trent's recorded statement, and the medical records.
The commission resolved any inconsistencies in the evidence in
favor of Trent. 	Trent's testimony and Dr. O'Brien's medical
records constitute credible evidence to support the commission's
findings that Trent's back injury was causally related to the
April 6, 1994 fall from the ladder and resulted in total
disability commencing April 7, 1994. 	"The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's findings." 	Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). 	On appellate review, this Court "does not retry the

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facts, reweigh the preponderance of the evidence, or make its own
determination of the credibility of the witnesses." 	Id.
Because we affirm the commission's finding that Trent
suffered total disability, we will not address the merits of
employer's argument that Trent failed to market his residual
capacity. 	Therefore, for the reasons stated, we affirm the
commission's award of temporary total disability benefits for the
period from April 8, 1994 through August 14, 1994 and temporary
partial disability benefits commencing August 15, 1994.
Affirmed.