COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

SKYLINE EXCAVATING COMPANY, INC. AND 

 MARYLAND CASUALTY COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1956-96-3 JUDGE CHARLES H. DUFF 

 APRIL 29, 1997 

JOHN K. ABSHIRE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Mark M. Caldwell, III (Sarah Y.M. Kirby; Mary 

Louise Kramer; Sands, Anderson, Marks & 

Miller, on briefs), for appellants. 

 Howard A. Herzog for appellee. 

 Skyline Excavating Company, Inc. and its insurer 

(hereinafter collectively referred to as "employer") appeal a 

decision of the Workers' Compensation Commission awarding 

compensation benefits to John K. Abshire (claimant). Employer 

contends that the commission erred in finding that claimant's 

medical treatment, surgery, and disability were causally related 

to an October 3, 1994 work-related accident. Finding no error, 

we affirm. 

 I. The October 3, 1994 Incident

 Claimant began performing construction work for employer in 

October 1994. On October 3, 1994, employer directed claimant and 

his co-workers to replace a water line in an alley near a public 

road. During this task, Tommy Johnson and Jimmy Moran 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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jackhammered rock in a three-foot deep ditch so that they could 

place a joint of pipe in the ditch. At the time of claimant's 

alleged accident, Dave Vatter operated a backhoe, removing rocks 

from the ditch. Employer directed claimant to hold a flanged 

steel digging bar next to an old water line located in the ditch 

so that the backhoe bucket would not accidentally strike and 

break the old water line. 

 According to claimant's testimony, he was holding the 

digging bar when the backhoe bucket hit the left side of his 

body, causing him to curl over the bucket. When the bucket 

stopped, it threw him across the alley onto a dirt embankment, 

whereupon he immediately started vomiting. Claimant removed his 

hard hat and tossed it into the alley, and walked up the hill 

with Johnson to the employer's van. Claimant vomited a couple of 

times on the way to the van. When he got into the van, his 

stomach and back hurt. He then got out of the van, lay on the 

ground, and vomited again. Eventually, Mickey Cash, claimant's 

supervisor, took claimant to the Augusta County Hospital 

emergency room. Claimant told Cash about the incident in a 

manner consistent with his hearing testimony. Claimant attempted 

to return to work two days after the accident, but was unable to 

work due to pain in his lower back, stomach, and right leg. 

 Claimant's wife testified that when she arrived at the 

jobsite on October 3, 1994, Johnson told her that the backhoe 

bucket hit claimant and then it threw him onto a bank. 
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 Vatter testified that the backhoe bucket slid off a rock and 

hit the digging bar. Vatter believed the bar struck claimant 

although he was looking in the ditch rather than directly at 

claimant. After the incident, claimant told Vatter that his leg 

hurt and he felt sick. 

 Moran, who was twenty-five to thirty feet away from where 

the accident occurred, and Johnson, who was fifteen feet away, 

testified that although the backhoe bucket hit the digging bar 

held by claimant, the bucket did not hit claimant himself and 

claimant was not thrown or knocked by the bucket. Johnson 

admitted that the digging bar being hit by the backhoe bucket may 

have "jarred" claimant. 

 Cash testified that he was on the jobsite on October 3, 

1994, but he did not see the incident. When Cash took claimant 

to the hospital after the incident, claimant first told Cash that 

the backhoe had hit him, but later claimant stated that the 

digging bar had hit him in the back or the side. 

 II. The Medical Evidence 

 Drs. Peter Puzio, a neurologist, and Harold F. Young, a 

neurosurgeon, treated claimant. Each doctor recorded a history 

of a backhoe striking claimant and throwing or knocking him ten 

feet. 

 On May 18, 1995, Dr. Young opined that claimant's spinal 

pain was severe enough to require surgery, and that this pain was 

caused by the October 3, 1994 accident wherein claimant "was 
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struck and thrown." Dr. Young noted that claimant told him he 

had not suffered from any spinal pain prior to October 3, 1994. 

Dr. Young further opined that surgery on claimant's lumbar spine 

and possibly surgery on his thoracic and/or cervical spine were 

necessitated by the October 3, 1994 accident. On June 13, 1995, 

Dr. Young performed an L4-S1 fusion on claimant's back. 

 On August 29, 1995, Dr. Young opined that the impact 

claimant sustained in the accident caused his asymptomatic 

spondylolysis and spondylolisthesis to become symptomatic. Dr. 

Young reiterated his opinion that claimant's need for surgery 

resulted directly from the October 3, 1994 accident. Dr. Young 

based this opinion upon the facts that claimant was not 

experiencing any back pain or disability before October 3, 1994, 

and that he experienced severe lower back pain and intermittent 

leg pain and numbness after the incident. 

 On November 20, 1995, in response to a report generated by 

Dr. Herman Nachmann upon his review of claimant's medical records 

for employer, Dr. Puzio, who disagreed with Dr. Nachmann's 

opinions, opined that claimant sustained significant traumatic 

effects to his spine as a result of the October 3, 1994 incident. 

 Although claimant denied any prior history of back problems, 

other medical evidence indicated that claimant suffered from 

asymptomatic spondylolysis and spondylolisthesis prior to the 

October 3, 1994 incident, and furthermore, had suffered a 1991 

work-related back injury. 
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 III. The Commission's Decision

 The commission found that claimant's post-October 5, 1994 

disability, medical treatment, and surgery were causally related 

to an October 3, 1994 incident. The commission accepted the 

testimony of claimant's co-workers, concluding that the backhoe 

bucket did not hit claimant nor was he thrown ten feet. The 

commission concluded that claimant was holding the digging bar 

against his left leg and the backhoe bucket struck the digging 

bar, leaving claimant dazed and in shock. The commission relied 

upon the opinions of Drs. Young and Puzio to find a causal 

connection between the accident and claimant's disability and 

surgery. 

 IV. Analysis

 "Under our standard of review . . . factual findings are 

conclusive and binding on this Court. . . . Furthermore, the 

probative weight the commission gave the conflicting testimony is 

similarly within its province and not subject to our review." 

Birdsong Peanut Co. v. Cowling, 8 Va. App. 274, 279, 381 S.E.2d 

24, 27-28 (1989). As fact finder, the commission concluded, as 

it was entitled to do, based upon claimant's co-workers' 

testimony, that the accident occurred when claimant was holding 

the digging bar against his left leg and the backhoe bucket 

struck the digging bar. "'If there is evidence, or reasonable 

inferences can be drawn from the evidence, to support the 

Commission's findings, they will not be disturbed on review, even 
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though there is evidence in the record to support a contrary 

finding.'" Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431 

S.E.2d 342, 344 (1993) (quoting Morris v. Badger Powhatan/Figgie 

Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)). 

 "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 opinions of 

Drs. Young and Puzio, along with the uncontradicted evidence that 

before the October 3, 1994 incident, claimant's back condition 

was asymptomatic and he had been able to perform heavy labor, 

provide credible evidence to support the commission's finding 

that the October 3, 1994 incident caused or aggravated claimant's 

back conditions resulting in his post-October 5, 1994 disability 

and lumbar fusion surgery. The commission was entitled to weigh 

the probative value of these medical opinions, and to conclude 

that "any inaccuracies in the exact mechanism of the accident are 

of minor importance and do not discredit the physicians' 

opinions." 

 Because credible evidence supports the commission's findings 

that the October 3, 1994 incident occurred as described by 

claimant's co-workers, and that it caused claimant's post-October 

5, 1994 disability and surgery, those findings are conclusive and 

binding upon us. 

 For the reasons stated, we affirm the commission's decision. 
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 Affirmed.