Opinion
Record No. 0032-94-2 Record No. 0082-94-2
Decided: July 12, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed. Dismissed.
(Michele S. Lewane; Hubard, Samuels Lewane on briefs), for Stephen Randell Snyder.
(P. Dawn Bishop; Sands, Anderson, Marks Miller, on briefs), for Kimberly Quality Care, et al.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Stephen Randell Snyder (claimant) contends that the Workers' Compensation Commission erred in finding that his cervical disc herniation was not causally related to his June 9, 1992 compensable injury by accident. (Record No. 0032-94-2). Kimberly Quality Care and its insurer (hereinafter collectively referred to as "employer") contend that the commission erred in finding that (1) claimant did not unjustifiably refuse selective employment, and (2) claimant proved he was entitled to temporary total disability benefits for the period from February 18, 1993 through May 12, 1993. (Record No. 0082-94-2).
Upon reviewing the record and the briefs of the parties, we conclude that these appeals are without merit. Accordingly, we summarily affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts, we recite them only as necessary to explain our decision.
On appellate review, 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). Upon appellate review, factual findings made by the commission will be upheld when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's findings." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
I. Cervical Disc Herniation-Causal Connection (Record No. 0032-94-2)
"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). Unless we can say as a matter of law that claimant's evidence was sufficient to sustain his burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In finding that claimant failed to prove that his cervical condition was causally related to the June 9, 1992 injury by accident, the commission stated:
[W]e find no persuasive evidence in this record that the employee sustained injury to his cervical spine as a result of the industrial accident on June 9, 1992. We are not persuaded that the claimant's statement that he had left shoulder pain or tingling in the left arm has been translated into cervical injury by way of early medical reports.
This finding is supported by credible medical evidence, including the medical records of Dr. Daniel C. Lawrence, the initial treating physician, Dr. Bernard A. Lublin, an orthopedic surgeon, and Dr. George W. Johnson, a neurosurgeon. Dr. Lawrence's June 16, 1992 and June 22, 1992 office notes indicate that claimant had full range of motion in his neck. Dr. Lublin's June 25, 1992 letter to Dr. Lawrence indicates that he found claimant to have full range of neck flexion and extension, and rotation to the right and left sides without difficulty. X-rays taken of claimant's cervical spine on June 22, 1992 showed no evidence of any developmental, degenerative, or traumatic process. In a June 24, 1992 letter to employer's insurance carrier, Dr. Johnson opined that claimant's cervical spine was well within normal limits. All of these physicians diagnosed claimant as suffering from a lumbar strain or sprain. They found no indication of a cervical injury in June 1992. In May 1993, in letters addressed to employer's counsel, Drs. Johnson and Lublin opined that, based on their early examinations of claimant, the cervical disc herniation which was diagnosed by Dr. Galen G. Craun, Jr. in December 1992, was not present in June 1992. Therefore, they opined that claimant's cervical condition was not related to his June 9, 1992 industrial accident. Contrary to claimant's assertions, the relatively few complaints of neck pain he exhibited in June 1992 do not necessarily equate with the existence of a herniated cervical disc.
The commission, in its role as fact finder, was entitled to give little or no weight to Dr. Craun's opinion regarding causation, because it was based upon a history from claimant given in December 1992, which was not supported by the early medical records. Based upon the medical records of Drs. Lawrence, Lublin, and Johnson, we cannot say as a matter of law that claimant met his burden of proving that his cervical disc herniation was causally related to the June 9, 1992 industrial accident.
II. Refusal of Selective Employment and III. Temporary Total Disability (Record No. 0082-94-2)
Claimant contends that employer's notice of appeal was not timely filed pursuant to the requirements of Rule 5A:11(b). Rule 5A:11(b) reads in pertinent part:No appeal from an order of the Commission shall be allowed unless, within 30 days after entry of the order appealed from, or within 30 days after receipt of notice by registered mail of the order appealed from, counsel files with the clerk of the Virginia Workers' Compensation Commission a notice of appeal.
The commission's opinion was entered December 8, 1993. Employer's notice of appeal was filed January 10, 1994. An appellant bears the burden of proving appellate jurisdiction. Thomas v. State Highway Comm'r, 166 Va. 512, 516, 186 S.E. 172, 174 (1936). Because employer offers no evidence concerning a "receipt of notice" date, and the record does not show a "receipt of notice" date, the only effective date for computing time is the opinion date, December 8, 1993. Using that date, the notice of appeal was due on or before January 7, 1994. Since it was not filed until January 10, 1994, employer's appeal is dismissed.
Affirmed. Dismissed.