                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


BONNIE BE-LO MARKETS AND
 MERCHANTS OF VIRGINIA GROUP
 SELF-INSURANCE ASSOCIATION
                                          MEMORANDUM OPINION * BY
v.   Record No. 1273-00-1                  JUDGE G. STEVEN AGEE
                                               MARCH 13, 2001
BENNY EDWARD HOUSE


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          William C. Walker (Donna White Kearney;
          Taylor & Walker, P.C., on brief), for
          appellants.

          Chanda L. Wilson (Rutter, Walsh, Mills &
          Rutter, L.L.P., on brief), for appellee.


     Bonnie Be-Lo Markets and its insurer (hereinafter referred

to as "employer") contend on appeal that the Workers'

Compensation Commission erred in its May 4, 2000 opinion which

held that Benny Edward House (claimant) proved that (1) he

sustained a compensable injury by accident on December 5, 1997;

and (2) that he has been totally disabled since December 5,

1997, as a result of the December 5, 1997 injury by accident.

We affirm the decision of the Workers' Compensation Commission.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              BACKGROUND

     The claimant had worked for the employer as a meat cutter

since 1995.    Before December 5, 1997, claimant suffered from

back problems for which he had undergone seven back surgeries,

the last of which occurred in July 1997.    Following the July

1997 back surgery, claimant remained out of work until November

3, 1997.   Claimant's treating physician, Dr. Mark B. Kerner,

executed a document dated October 29, 1997, which said only the

following:

             Benny House is able to return to his full
             time work duties as a meat cutter without
             restriction on 11/3/97.

     Claimant testified that before he returned to work on

November 3, 1997, Dr. Kerner did not tell him that he should

avoid performing work which required heavy lifting.      Claimant

testified that Dr. Kerner told him to wear a back brace and to

be careful as to how he lifted objects.    Claimant stated that he

wore a back brace after he returned to work in November 1997

when his job necessitated heavy lifting.

     After claimant returned to work as a meat cutter on

November 3, 1997, he was able to perform his regular duties,

including heavy lifting, up until December 5, 1997.      Claimant

testified that on December 5, 1997, he tried to move a case of

meat weighing approximately one hundred pounds from the floor to

a dolly.   As he did so, he experienced pain in his back that

radiated into his right hip and right leg.    Claimant was wearing

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a back brace at the time of the accident.      After the December 5,

1997 incident, claimant again sought medical treatment from Dr.

Kerner.    Claimant has not returned to work since December 5,

1997.

        Dr. Kerner wrote several letters to counsel or insurance

carriers after his initial treatment of the claimant for the

December 5, 1997 injury.    Reflective of that correspondence is a

letter of January 14, 1998 to Trigon in which Dr. Kerner wrote:

             I did not give the patient permission to go
             back to his usual and customary duties.
             Quite the opposite. I told him it would be
             foolish and wrong for him to return to that
             work.

        All of Dr. Kerner's recorded statements of this type are

after the December 5, 1997 accident.

        On December 9, 1997, Dr. Kerner diagnosed "a work related

flare of injury . . ." and opined that "the patient appears

unable to return to his usual and customary work . . . ."

                               ANALYSIS

        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).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.       See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).




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                        I.   Injury by Accident

        Employer argues that claimant failed to prove he sustained

an "accident" on December 5, 1997, as defined by the Workers'

Compensation Act, on the ground that claimant's December 5, 1997

back injury was the foreseeable result of his returning to work

as a meat cutter, which required heavy bending, lifting and

twisting, contrary to Dr. Kerner's instructions to avoid such

work.    The commission rejected this argument and found as

follows:

             The claimant testified that he did not have
             any restrictions resulting from his
             pre-existing back condition. His testimony
             is supported by [Dr. Kerner's] October 29,
             1997, release "to return to his regular
             full-time duties as Meat Cutter without
             restriction on 11/3/97." This release is
             clear and not subject to interpretation.

        Claimant's testimony, coupled with Dr. Kerner's unequivocal

written release allowing claimant to return to full-time work as

a meat cutter without restriction as of November 3, 1997

constitutes credible evidence to support the commission's

finding that claimant sustained a compensable injury by

accident.    The commission, as fact finder, was entitled to

accept claimant's testimony that before December 5, 1997, Dr.

Kerner never told him to avoid work that required heavy lifting,

and to reject Dr. Kerner's post-December 5, 1997 office notes

and letters to the contrary.     "In determining whether credible

evidence exists, the appellate court does not retry the facts,


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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).   "The fact that there is contrary evidence in the record

is of no consequence if there is credible evidence to support

the commission's finding."      Id.

                          II.     Disability

     In ruling that claimant proved that he was totally disabled

beginning December 5, 1997 and that such disability was causally

related, at least in part, to his December 5, 1997 injury by

accident, the commission found as follows:

           The record does not reflect that Dr. Kerner
           released the claimant to light-duty work.
           The employer notes that in his January 14,
           1998, letter to the insurer, Dr. Kerner
           wrote that the claimant was able to perform
           light-duty employment. In that letter, Dr.
           Kerner stated that: "He has to basically do
           light sedentary activities with his back.
           He can do no heavy bending, lifting, or
           twisting . . . ." However, Dr. Kerner also
           stated that at times, the claimant "is
           entirely incapacitated." It is unclear
           whether Dr. Kerner believes the claimant is
           capable of returning to light-duty work. In
           any event, he has not communicated any
           release to the claimant. An employee is not
           required to market his residual work
           capacity until after he has been advised of
           his release to light-duty employment.

     "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).   Furthermore, "[t]he actual

                                  - 5 -
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).

     As fact finder, the commission was entitled to weigh the

medical evidence.   Based upon Dr. Kerner's December 9, 1997

office notes and his August 13, 1999 letter to claimant's

counsel in which he indicated that "[t]he incremental increase

in [claimant's] disability from such an injury would not be

considered to be more than 5 or 10 percent of his total

disability . . . [,]" the commission was entitled to infer that

claimant's post-December 5, 1997 disability was causally

related, at least in part, to his December 5, 1997 injury by

accident.

     Moreover, as fact finder, the commission could infer that

the language contained in Dr. Kerner's January 14, 1998 letter

did not constitute a release to light-duty work.   While Dr.

Kerner commented that claimant engaged in light-sedentary

activities, he also noted that claimant could not perform heavy

lifting, bending or twisting and was totally incapacitated at

times.   The commission could conclude Dr. Kerner did not

specifically release claimant to light or sedentary work.

"Where reasonable inferences may be drawn from the evidence in

support of the commission's factual findings, they will not be



                               - 6 -
disturbed by this Court on appeal."   Hawks v. Henrico County

Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).

     For these reasons, we affirm the commission's decision.

                                                   Affirmed.




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