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Bonnie Be-Lo Markets v. House3/13/2001
ding, lifting and twisting, contrary to Dr. Kerner's instructions to avoid such work. The commission rejected this argument and found as follows:
The claimant testified that he did not have any restrictions resulting from his pre-existing back condition. His testimony is supported by [Dr. Kerner's] October 29, 1997, release "to return to his regular full-time duties as Meat Cutter without restriction on 11/3/97." This release is clear and not subject to interpretation.
Claimant's testimony, coupled with Dr. Kerner's unequivocal written release allowing claimant to return to full-time work as a meat cutter without restriction as of November 3, 1997 constitutes credible evidence to support the commission's finding that claimant sustained a compensable injury by accident. The commission, as fact finder, was entitled to accept claimant's testimony that before December 5, 1997, Dr. Kerner never told him to avoid work that required heavy lifting, and to reject Dr. Kerner's post-December 5, 1997 office notes and letters to the contrary. "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." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Id.
II. Disability
In ruling that claimant proved that he was totally disabled beginning December 5, 1997 and that such disability was causally related, at least in part, to his December 5, 1997 injury by accident, the commission found as follows:
The record does not reflect that Dr. Kerner released the claimant to light-duty work. The employer notes that in his January 14, 1998, letter to the insurer, Dr. Kerner wrote that the claimant was able to perform light-duty employment. In that letter, Dr. Kerner stated that: "He has to basically do light sedentary activities with his back. He can do no heavy bending, lifting, or twisting . . . ." However, Dr. Kerner also stated that at times, the claimant "is entirely incapacitated." It is unclear whether Dr. Kerner believes the claimant is capable of returning to light-duty work. In any event, he has not communicated any release to the claimant. An employee is not required to market his residual work capacity until after he has been advised of his release to light-duty employment.
"Medical evidence is not necessarily conclusive, but is subject to the commission's consideration and weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). Furthermore, " he 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).
As fact finder, the commission was entitled to weigh the medical evidence. Based upon Dr. Kerner's December 9, 1997 office notes and his August 13, 1999 letter to claimant's counsel in which he indicated that " he incremental increase in [claimant's] disability from such an injury would not be considered to be more than 5 or 10 percent of his total disability . . . [,]" the commission was entitled to infer that claimant's post-December 5, 1997 disability was causally related, at least in part, to his December 5, 1997 injury by accident.
Moreover, as fact finder, the commission could infer that the language contained in Dr. Kerner's January 14, 1998 letter did not constitute a release to light-duty work. Wh
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