Maddox v. Federal Express Corp.6/21/1994
Per Curiam
Gary Leon Maddox contends that the Workers' Compensation Commission erred in (1) finding that his back injury and disability after November 11, 1991, were not causally related to his November 13, 1990, compensable industrial accident; and (2) failing to accept an audiotape into evidence. 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. See Rule 5A:27.
On appeal, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The commission accepted the opinions of Drs. Bruce J. Ammerman and Stephen R. Shaffer, and rejected the contrary opinions of Drs. Gregory M. Ford, Lee A. Bazzarone, Gary J. Santora, and Aldo M. Rosemblat. After examining Maddox, Drs. Ammerman and Shaffer opined that Maddox's cervical and thoracic complaints were the result of degenerative changes, that the complaints were not related to injury sustained on November 13, 1990, and that Maddox had recovered from his low back injury. They also opined that he was not disabled from his regular work, and they recommended against surgery. The opinions of Drs. Ammerman and Shaffer with regard to a lack of a causal connection are supported by the early medical records, which do not reflect any indication of a cervical injury in the months immediately following the November 13, 1990, accident. In addition, Maddox's testimony that he returned to work on December 10, 1990, and was not required to seek medical treatment again until November 4, 1991, supported the commission's finding that Maddox failed to prove a causal connection between the original injury and the complaints. "Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). The opinions of Drs. Ammerman and Shaffer constitute credible evidence to support the commission's decision.
With regard to the evidentiary question, Maddox's counsel merely asked whether the deputy commissioner "would . . . want to hear these [tapes]--I haven't heard the second tape." When the opposing counsel objected, the deputy commissioner stated that he would listen to the witness's testimony about "what he feels is incorrect on the records." Maddox's counsel responded, "Fair enough," and never offered the tapes as an exhibit. The commission properly found that the tapes were not proffered as evidence. Because the tapes were not offered as evidence and because Maddox's counsel acquiesced in the suggested procedure without objection, Rule 5A:18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of Justice exceptions to Rule 5A:18.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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