George M. Smith, III v Trend Form, Inc., etc

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
GEORGE M. SMITH, III
v. 	Record No. 2442-94-1 	MEMORANDUM OPINION*
PER CURIAM
TREND FORM, INC. 	JUNE 13, 1995
AND
NATIONWIDE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Ann K. Sullivan; Crenshaw, Ware & Martin, on brief),
for appellant.
(Ralph E. Lawrence, on brief), for appellees.
George M. Smith, III, contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that (1) the cerebral hemorrhage that he suffered on September 3,
1993 was caused by his work activities on that date; and (2) he
sustained an injury by accident arising out of and in the course
of his employment on September 3, 1993. 	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.
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
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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). 	Unless we can say as a
matter of law that Smith's evidence sustained his burden of
proving causation, the commission's findings are binding and
conclusive upon us. 	Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 833, 835 (1970).
In holding that Smith failed to prove that his September 3,
1993 cerebral hemorrhage was caused by his work activities on
that date, the commission held that:
We are not persuaded by the conclusion
of Dr. Magness attributing the September 3,
1993 hemorrhage to work activities on that
day. 	The medical evidence clearly
establishes that the hemorrhage might have
been caused by emotional problems as well as
physical activities, and might even have
developed spontaneously. 	Even in March 1994,
the physician was not clear regarding the
physical activities of [Smith] on that day,
and even those were received from individuals
who had not witnessed the events, and we
cannot find that his causal attribution to
the work is well reasoned or reliable.
Moreover, the claimant's
uncorroborated testimony does not persuade us
that he performed the vigorous activities
that he described at the hearing or that the
onset of symptoms resulted within 20 minutes
thereof. 	Accordingly, since such facts are
not established in this case, Dr. Magness'
opinion finding a causal link relying on
those facts is flawed and is given little
weight.
The commission, in its role as fact finder, was entitled to
determine what weight, if any, was to be given to Dr. Magness'
opinion. 	"It lies within the commission's authority to determine

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the facts and the weight of the evidence . . . ." 	Rose v. Red's
Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392,
395 (1990).
Dr. Magness, in his November 12, 1993 and February 4, 1994
opinions, stated that Smith suffered a work-related injury on
September 3, 1993. 	Those opinions were based upon information
concerning Smith's work activities that was provided to Dr.
Magness by Smith's mother and Smith's attorney, neither of whom
witnessed the work activity. 	Dr. Magness referred to Smith's
September 3, 1993 work activity as involving "severe exertion" or
"vigorous activity." 	He also believed that it may have involved
heavy lifting. 	However, it was readily apparent from Dr.
Magness' testimony that he was not aware of the details of what
occurred on September 3, 1993. 	In addition, Smith's version of
the events of September 3, 1993 conflicted with the testimony of
his co-workers and his supervisor. 	Smith's supervisor testified
that Smith did not perform any strenuous physical activity or
heavy lifting on September 3, 1993. 	Based upon these conflicts
in the witnesses' testimony, the commission was entitled to
discount Smith's testimony concerning the events of September 3,
1993. 	Therefore, it did not err in finding that Dr. Magness'
opinion was flawed because it was based on facts not established
by the evidence. 	Finally, in his March 25, 1994 deposition
testimony, Dr. Magness admitted that the cerebral hemorrhage on
September 3, 1993 could have resulted from a number of

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precipitating causes, including physical or emotional stress, as
a spontaneous hemorrhage, or merely because "as time . . .
passed the walls of the arteriovenous malformation [had] been
weakened possibly by his radiation treatment."
Based upon these inconsistencies in the evidence, the
commission was entitled to reject Dr. Magness' opinions
concerning causation. 	Accordingly, we cannot find as a matter of
law that Smith met his burden of proving a causal link between
his September 3, 1993 work activities and his cerebral
hemorrhage.
Since our holding on this issue disposes of this appeal, we
will not address the injury by accident issue. 	For the reasons
stated, we affirm the commission's decision.
Affirmed.