Montgomery Ward & Co., Inc. v Richard M. Dozier

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
MONTGOMERY WARD & COMPANY, INC.
v. 	Record No. 0660-95-1 	MEMORANDUM OPINION*
PER CURIAM
RICHARD M. DOZIER 	SEPTEMBER 19, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Susan B. Potter; Vandeventer, Black, Meredith &
Martin, on brief), for appellant.
(T. Greg Willey, on brief), for appellee.
Montgomery Ward & Company, Inc. ("employer") contends that
the Workers' Compensation Commission erred in finding that
Richard M. Dozier ("claimant") proved that he sustained a neck
injury causally related to his compensable March 9, 1993 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.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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.

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684, 688, 376 S.E.2d 814, 817 (1989). 	"The existence of 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).
In awarding compensation benefits to claimant, the
commission found as follows:
Dr. [Isabelle L.] Richmond, [a
neurosurgeon], testified in her deposition
that she was provided with the medical
records of Dr. [Joseph F.] Dilustro, and
she also discussed the problem with that
referring physician prior to examining the
claimant. 	She concluded from the medical
reports and her discussions that the
claimant's earlier neck problems for which
surgery was performed October 2, 1992 had
resolved by February 24, 1993. 	However,
the preexisting arthritic process and the
October 1992 surgery had left the
claimant's neck in an inherently weakened
condition, which predisposed him to further
accidental injury. 	Dr. Richmond testified
that the accidental event on March 9, 1993
caused a new and different injury, although
in the same location as previously
experienced. 	She was not troubled that the
onset of symptoms were delayed, noting that
this was the nature of the injury suffered
by the claimant. 	Dr. Richmond concluded
that the actual injury occurred on March 9,
1993, but the onset of symptomatology was
insidious and would not be expected to be
noticed for some weeks afterwards,
especially upon consideration of the
severely painful and distracting injury the
claimant had suffered to . . . [his] [left
arm]. 	Dr. Richmond found support for her
opinion from the results of the EMG study
performed on July 1, 1993, which was
consistent with an acute injury and not
merely an irritation of a preexisting
problem.
The medical records and reports of Drs. Dilustro and

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Richmond, coupled with Dr. Richmond's deposition testimony,
provide credible evidence to support the commission's finding
that the claimant suffered a cervical injury by accident on March
9, 1993. 	In its role as fact finder, the commission was entitled
to weigh the opinions of Drs. Dilustro and Richmond, and to
accept their conclusions. 	The commission was also entitled to
discount the opinion of Dr. Frank W. Gwathmey, a hand surgeon.
Dr. Gwathmey did not treat claimant for his neck condition.
Moreover, Dr. Gwathmey deferred to Dr. Richmond's opinion
concerning causation. 	"In determining whether credible evidence
exists, the appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." 	Id.
For these reasons, we affirm the commission's decision.
Affirmed.