WFS Financial Corp., et al. v Jean S. Tomboulian

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
WFS FINANCIAL CORPORATION
AND
VIGILANT INSURANCE COMPANY
v. 	Record No. 1369-95-4 	MEMORANDUM OPINION*
PER CURIAM
JEAN S. TOMBOULIAN 	NOVEMBER 21, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Frank R. Kearney; Mell, Brownell & Baker,
on brief), for appellants.
(Michele S. Lewane; Hubard, Samuels & Lewane, on
brief), for appellee.
WFS Financial Corporation and its insurer (hereinafter
collectively referred to as "employer") contend that the Worker's
Compensation Commission erred in finding that Jean Tomboulian
proved that her medical treatment since October 1991 was causally
related to her compensable March 3, 1986 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.
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
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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support the finding." 	Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989). 	"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).
In awarding compensation benefits to Tomboulian, the
commission found as follows:
After careful Review of the medical evidence,
we find the Deputy Commissioner did not err
in holding the employer responsible for the
bills incurred by [Tomboulian] after October
1991 at [University of North Carolina
Hospital ("UNC")]. 	Although the exact
etiology of [Tomboulian's] complaints remains
unknown, her complaints and history of crush
injury have been consistently documented
since 1987. 	Dr. [Steven K.] Gudeman opined
that her complaints are directly related to
the 1986 accident. 	Possible unrelated
causes, such as cervical radiculopathy and
carpal tunnel syndrome, have been ruled out.
We find that the evidence is sufficient to
carry the claimant's burden of proof.
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinion of Dr.
Gudeman, Professor and Chief of the Division of Neurosurgery at
UNC. 	The commission was also entitled to reject the opinion of
independent medical examiner, Dr. David Zelouf, who examined
Tomboulian on two occasions at employer's request. 	In cases of
conflicting medical evidence, "[t]he general rule is that when an
attending physician is positive in his diagnosis . . . , great
weight will be given by the courts to his opinion." 	Pilot
Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d

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570, 572 (1986). 	Dr. Gudeman's opinion, along with Tomboulian's
history of ongoing right hand and wrist symptoms since the March
3, 1986 injury by accident, constitute credible evidence to
support the commission's decision. 	"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).
For the reasons stated, we affirm the commission's decision.
Affirmed.