Industrial Air Conditioning, et al.v Timberlake

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
INDUSTRIAL AIR CONDITIONING &
REFRIGERATION AND
NETHERLANDS INSURANCE COMPANY
MEMORANDUM OPINION*
v. 	Record No. 1028-00-2 	PER CURIAM
SEPTEMBER 26, 2000
GLENN E. TIMBERLAKE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cecil H. Creasey, Jr.; Patsy L. Mundy;
Sands, Anderson, Marks & Miller, on brief),
for appellants.
(Ruth E. Nathanson; Maloney, Parks, Clarke &
Nathanson, P.C., on brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Industrial Air Conditioning & Refrigeration and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission erred in finding that Glenn E.
Timberlake proved that (1) his disability and medical treatment
were causally related to his March 10, 1999 compensable injury
by accident; and (2) he had not been released to light-duty work
as of March 17, 1999, and, therefore, did not have a duty to
market his residual work capacity. 	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.
I.
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). 	"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).
The commission ruled that "[a]lthough the medical record
reveals that [Timberlake] had a pre-existing back condition,
initiated by a December 1997 work injury, we find that [he]
proved he suffered a new injury by accident on March 10, 1999,
and that this injury caused his resulting disability and need
for medical treatment." 	In so ruling, the commission found as
follows:
[Timberlake] testified to a new injury
by accident in which he felt a sharp pain in
his back while lifting a piece of pipe. 	He
described pain from this incident as
completely different from any previous aches
or soreness for which he had been
periodically treating with Dr. [Steven W.]
Melhorn. 	There is no evidence that
[Timberlake] had persistent or unrelenting
symptoms as a result of his prior accident,
and [he] has testified to only periodic
flare-ups of tightness in his back which was
treated with manipulation and no medication.
The evidence also does not establish that
[he] suffered lost time from work because of
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this condition prior to his industrial
accident.
Dr. Melhorn's records show that
[Timberlake] was doing very well with his
back during the two-day period between his
last visit with the doctor and his work
accident. 	Dr. Melhorn opined that
[Timberlake] suffered an acute strain/sprain
and herniated disc in the March 10, 1999,
accident. 	Although Dr. [Benjamin R.]
Allen[, Jr.] could not state the
"precipitating medical event" causing
[Timberlake's] condition, this does not
contradict Dr. Melhorn's opinion that
[Timberlake] suffered an acute injury on
March 10, 1999, when he ruptured a disc
lifting a pipe.
The commission's factual findings are supported by credible
evidence, including Timberlake's testimony and Dr. Melhorn's
reports and uncontradicted opinions. 	Therefore, those findings
are binding and conclusive upon us on appeal. 	"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). 	Moreover, "'the employer takes the employee as
he is and if the employee is suffering some physical infirmity,
which is aggravated by an industrial accident, the employer is
responsible for the end result of such accident.'" 	McDaniel v.
Colonial Mechanical Corp., 3 Va. App. 408, 414, 350 S.E.2d 225,
228 (1986) (citation omitted).
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II.
Contrary to employer's argument, no evidence in the record
established that Timberlake was capable of performing light-duty
work as of March 17, 1999. 	Neither Dr. Melhorn nor Dr. Allen
had released Timberlake to return to work as of that date.
Evidence showing that Timberlake fished for fifteen minutes and
cut his grass for ten minutes with a riding lawn mower did not
prove that he was capable of performing light-duty work. 	In
fact, Timberlake's undisputed testimony revealed that he had to
stop fishing because his leg started to go numb and he had to
stop cutting the grass after ten minutes because it irritated
his leg. 	Moreover, Timberlake underwent back surgery on
March 30, 1999, after which Dr. Allen indicated that Timberlake
was totally incapacitated from work until July 19, 1999.
For these reasons, we affirm the commission's decision.
Affirmed.
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