John E. Wigfall v. Rainbow Ind., Inc., et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
JOHN E. WIGFALL MEMORANDUM OPINION*
v. 	Record No. 0403-98-4 	PER CURIAM
JUNE 23, 1998
RAINBOW INDUSTRIES, INC.
AND
PROVIDENCE WASHINGTON INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Matthew H. Swyers; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellant. 	Appellant submitting on brief.
(Susan L. Mitchell; John K. Coleman; Slenker,
Brandt, Jennings & Johnston, on brief), for
appellees. 	Appellees submitting on brief.
John E. Wigfall ("claimant") appeals a decision of the
Workers' Compensation Commission ("commission") denying his
application for permanent partial disability benefits and medical
benefits for his right knee condition. 	Claimant contends that
(1) by examining the sufficiency of certain medical records, the
commission violated the doctrine of res judicata; and (2) the
commission erred in finding that he failed to prove that his
right knee condition was causally related to his July 17, 1995
injury by accident. 	Finding no error, we affirm.
Res Judicata
Claimant's December 31, 1996 application, supplemented on
April 10, 1997, sought permanent partial disability benefits for
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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impairment to claimant's right lower extremity. 	The issue
presented by that application was not, and could not have been,
previously litigated and determined as to these parties. 	The
prior agreements between the parties and the commission's
December 14, 1995 and December 12, 1996 awards pertained only to
benefits for claimant's left medial meniscus injury. 	Therefore,
the doctrine of res judicata did not bar the commission from
considering the medical records in order to determine whether
claimant's right knee condition was causally related to his
compensable July 17, 1995 injury by accident.
Causation
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. 	See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying claimant's application, the commission found as
follows: From this record, we find the evidence
fails to establish that the claimant's right
knee condition is causally related to the
compensable accident which the claimant
suffered on July 17, 1995. 	The
contemporaneous medical reports fail to
mention a right knee complaint. 	While Dr.
[Drago] Smokvina noted the left knee injury
as well as a "similar problem" in the right
knee, his reports are internally
contradictory regarding the etiology of right

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knee complaints. 	In view of the
inconsistencies in the medical record
regarding the onset of right knee symptoms,
we do not find Dr. Smokvina's September 22,
1996, report persuasive.
Based upon Dr. Smokvina's conflicting statements and the
lack of any contemporaneous complaints of right knee symptoms,
the commission was entitled to give little weight to Dr.
Smokvina's opinion. 	"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). 	Absent Dr. Smokvina's
opinion, there is no persuasive medical evidence that claimant's
right knee symptoms were causally related to his compensable July
17, 1995 injury by accident. 	Accordingly, we cannot say that
claimant's evidence sustained his burden of proof as a matter of
law.
For these reasons, we affirm the commission's decision.
Affirmed.