COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

ABF FREIGHT SYSTEM, INC. 

 MEMORANDUM OPINION*

v. Record No. 0788-97-3 PER CURIAM 

 AUGUST 5, 1997 

KEITH E. JOHNSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Roger L. Williams; Vasiliki Moudilos; 

Williams & Lynch, on brief), for appellant. 

 (Richard M. Thomas; Rider, Thomas, 

Cleaveland, Ferris & Eakin, on brief), for 

appellee. 

 ABF Freight System, Inc. (employer) contends that the 

Workers' Compensation Commission erred in finding that Keith E. 

Johnson was justified in refusing to undergo surgery recommended 

by Dr. Louis Pikula, Jr., the treating neurosurgeon. 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. 

 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). 

 So viewed, the evidence established that on May 9, 1995, 

while working for employer as a truck driver, Johnson sustained a 

compensable back injury. Several months after the accident, Dr. 

 

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

designated for publication. 
 2 

James Vascik performed surgery on the L4-5 level of Johnson's 

spine. The surgery proved unsuccessful. Johnson testified that 

his pain increased and that his low back pain and left foot 

numbness returned ten days after the operation. He also 

experienced numbness in both legs and in his outer right foot, 

which was not present before the surgery. Within weeks, Johnson 

developed right leg weakness and pain down the posterior lateral 

aspect of his right leg. 

 On January 3, 1996, Johnson began treating with Dr. Pikula, 

who offered him several treatment options. On March 6, 1996, 

Johnson underwent a CT scan and myelogram, which revealed a 

scarred L4-5 and a disc herniation at L5-S1. Dr. Pikula told 

Johnson that his condition would probably improve with surgery, 

but he could not guarantee the results. Dr. Pikula opined that 

Johnson had a seventy to eighty percent chance of improvement. 

On October 7, 1996, Dr. Pikula reported that after weighing the 

treatment options, including surgery, Johnson elected to continue 

with conservative treatment. At that time, Dr. Pikula reported 

that he saw no need for surgery because of the improvement in 

Johnson's condition with conservative treatment. Dr. Pikula 

opined that because of the unsatisfactory results obtained in 

Johnson's first surgery, Johnson's reluctance to have the second 

surgery was reasonable. 

 Based upon this record, the commission found that Johnson's 

refusal of the second surgery was justified. 
 3 

 "Justification is a factual determination made upon an 

objective view of all circumstances as they reasonably appeared 

to the claimant." Id. at 213, 390 S.E.2d at 789. The facts 

support the commission's finding that Johnson was justified in 

refusing to undergo back surgery "because of the unsuccessful 

outcome of [his] first surgery, and because the second surgery 

was presented as an option that carried with it certain risks." 

Credible evidence supports the commission's finding, which is 

binding and conclusive upon us. See id.

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

 Affirmed.