Burnley Moran Elem. School et al v Stewart Morton

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
BURNLEY MORAN ELEMENTARY SCHOOL
AND
CONSOLIDATED RISK MANAGEMENT SERVICE, INC.
v. 	Record No. 1756-95-2 	MEMORANDUM OPINION*
PER CURIAM
STEWART LEE MORTON 	DECEMBER 29, 1995
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(J. Brian Jackson; Patricia C. Karppi; McGuire, Woods,
Battle & Boothe, on brief), for appellants.
(George L. Townsend; Chandler, Franklin & O'Bryan, on
brief), for appellee.
Burnley Moran Elementary School and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in (1) finding that Stewart Lee
Morton's disability was causally related to his compensable March
26, 1992 injury by accident; and (2) finding that Chiropractor
Paul Stangil was an authorized treating physician. 	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
I. 	Change in Condition
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	R.G. Moore Bldg. Corp. v.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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.
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 Morton, the commission
found as follows:
We . . . find that [Morton's] current
disability stems from his accident of March
26, 1992. 	Although [Morton] had a history of
complaining of back pain, these complaints
were, as Dr. Stangil noted, self-resolving.
A CT scan before the accident showed no disc
herniations. 	The last time [Morton]
complained of back pain was 11 months before
the accident. 	There is no evidence that any
disability resulted from his earlier back
complaints, and [Morton] performed his job as
a school custodian for 13 years prior to the
accident. 	After the accident, [Morton] was
never able to return to his previous job. 	A
CT scan revealed multiple disc herniations.
Dr. [John A.] Jane, who never saw [Morton],
and his resident Dr. [Richard S.] Polin, were
unaware of the CT scan results, and
recommended that a CT scan be performed on
three occasions. 	Because they only
considered the EMG results, which were
normal, they stated that there is nothing
wrong with [Morton]. 	We find that Dr.
Stangil's opinion is more persuasive than Dr.
[David M.] Heilbronner's on the issue of
whether [Morton's] current condition pre-
existed the accident. 	Dr. Stangil is the
only treating doctor who has continued to
follow the case closely, and his opinion is
supported by the medical evidence and work
history of [Morton].

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In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinion of Dr.
Stangil. 	The commission was also entitled to reject the opinions
of Drs. Jane, Polin, and Heilbronner. 	Dr. Jane never examined
Morton. 	Dr. Stangil continuously treated Morton during the year
prior to the hearing. 	Moreover, Drs. Jane and Polin were unaware
of the CT scan results. 	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 570, 572 (1986). 	Dr.
Stangil's opinions, along with Morton's medical and work history,
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).
II. 	Treating Physician
"Whether the employer is responsible for medical expenses
. . . depends upon: 	(1) whether the medical service was causally
related to the . . . injury [by accident]; (2) whether such other
medical attention was necessary; and (3) whether the treating
physician made a referral [of] the patient." 	Volvo White Truck
Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985).
Based upon repeated referrals by Drs. Heilbronner and Jane, the

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commission found that Dr. Stangil was an authorized treating
chiropractor. 	The testimony of Morton and Dr. Stangil, and the
medical records of Drs. Heilbronner, Jane, and Stangil, provide
credible evidence to support this finding.
For the reasons stated, we affirm the commission's decision.
Affirmed.