Home Entertainment Video and Nationwide Mutual Insurance Co. v. Toombs12/9/1997
Argued at Richmond, Virginia
MEMORANDUM OPINION *fn*
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Home Entertainment Video (employer) and its insurer appeal the decision of the full commission awarding benefits to Karen L. Toombs (claimant) on the basis that claimant's injury is not causally related to her compensable accident. Finding no error in the commission's decision, we affirm.
Claimant's injury in this case arose while shoveling snow at her place of employment on February 2, 1996. As she tried to lift the snow-filled shovel, she experienced a pain in her back. She was examined several days later by orthopaedic surgeon, Dr. Jeffrey K. Wilson, who diagnosed a lumbar strain. Claimant had previously sought treatment for back pain from Dr. Wilson in August 1993. In his record of the August 1993 visit, Dr. Wilson states that he had seen claimant in 1990, "at which time she had a mild right I5 radiculopathy and spondylolysis at the L5-S1 level" but no other significant abnormality.
In conjunction with the February 1996 injury, claimant was treated with an epidural steroid injection on April 16, 1996 to resolve pain which had persisted since the accident. Subsequently, Dr. Wilson described claimant's spondylolisthesis as "chronically symptomatic," and referred claimant to Dr. David C. Urquia, another orthopedic surgeon.
Subsequent to his diagnosis that claimant suffered from pars defects and spondylolisthesis, Dr. Urquia performed fusion surgery on June 14, 1996. Dr. Urquia stated that the lumbar strain, which the claimant suffered as a result of her accident, had resolved by April 16, 1996. In his opinion, the claimant's continuing pain resulted from either chronic wear and tear or a congenital condition and he considered it "very unlikely that minor trauma such as a back strain from shovelling snow would have produced bilateral pars defects." Claimant returned to work on August 29, 1996. On September 5, 1996, she filed a claim for benefits for the period June 14, 1996 to August 28, 1996. The deputy commissioner issued an opinion in which he denied claimant's claim for benefits, concluding that "the claimant's pre-existing back condition, rather than any aggravation of it by her accident[,] was the cause of claimant's medical problems and disability after April 16, 1996." On May 28, 1997, the full commission reversed the decision of the deputy commissioner. It is from this decision that employer appeals.
On appellate review, we view the evidence in the light most favorable to the party prevailing below. Brown v. Tidewater Constr. Corp., 19 Va. App. 676, 677, 454 S.E.2d 42, 42 (1995) (citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990)). Generally, "' 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.'" CLC Constr., Inc. v. Lopez, 20 Va. App. 258, 265, 456 S.E.2d 155, 158 (1995) (quoting Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989)).
It is firmly established in Virginia law that "the employer takes the employee as the employer finds the employee, even where the employee suffers some physical infirmity." Williams Indus., Inc. v. Wagoner, 24 Va. App. 181, 187-88, 480 S.E.2d 788, 791 (1997) (citing Kemp v. Tidewater Kiewit, 7 Va. App. 360, 363, 373 S.E.2d 725, 726 (1988)). Following this axiom, the Virginia Supreme Court has held that an injury which aggravates or accelerates a pre-existing condition is compensable. Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985).
In evaluating the sufficiency
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