COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

HEALTHSOUTH MEDICAL CENTER/ 

 HEALTHSOUTH REHABILITATION 

 CORPORATION AND INSURANCE 

 COMPANY OF NORTH AMERICA MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 2690-96-2 APRIL 15, 1997 

GLORIA PIGNATORE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James G. Muncie, Jr.; Midkiff & Hiner, on 

brief), for appellants. 

 (Andrew J. Reinhardt; Kerns, Kastenbaum & 

Reinhardt, on brief), for appellee. 

 HealthSouth Medical Center, HealthSouth Rehabilitation, and 

its insurer (hereinafter collectively referred to as "employer") 

contend that the Workers' Compensation Commission (commission) 

erred in finding that Gloria Pignatore proved by a preponderance 

of the evidence that her November 14, 1995 back surgery and 

resulting disability were causally related to her compensable 

December 26, 1992 injury by accident. 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. Rule 5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

 

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

designated for publication. 
 2 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So 

viewed, the evidence showed that Dr. Anthony G. Velo, a 

neurosurgeon, treated Pignatore for a back injury in 1983 and 

performed surgery on Pignatore's back on March 5, 1984. 

Pignatore's symptoms continued after the surgery on an 

intermittent basis. On July 24, 1987, Pignatore was involved in 

an automobile accident which exacerbated her back symptoms. 

There is no evidence of medical treatment for Pignatore's back 

symptoms between February 1990 and December 1992. 

 Pignatore worked for employer for two years as a licensed 

practical nurse. On December 26, 1992, she sustained a 

compensable low back strain while lifting a patient. Dr. Michael 

K. Kyles, an orthopedic surgeon, began treating Pignatore for 

this injury. He diagnosed a low back strain with nerve root 

involvement, for which he provided conservative treatment. On 

June 13, 1994, after conservative treatment failed to resolve 

Pignatore's back symptoms, Dr. Kyles recommended surgery. 

Surgery was postponed at that time and considered again in April 

1995. On November 2, 1995, Dr. Kyles opined that surgery to 

alleviate the compression of Pignatore's disc at L5-S1 on the 

right was absolutely necessary. 

 Upon a referral from Dr. Kyles, Pignatore sought medical 

treatment from Dr. Bruce E. Mathern, a neurosurgeon. Dr. Mathern 

also opined that the surgery was necessary. 

 Employer declined to pay for the surgery. Therefore, 
 3 

Pignatore sought treatment from her family physician, who then 

referred her to Dr. J. Michael Simpson, an orthopedic surgeon. 

On November 14, 1995, Dr. Simpson performed a decompressive 

laminectomy of L-4 and L-5, and bilateral lateral fusion at L-4 

to S-1 with Synthes pedicle screw instrumentation and left 

posterior iliac crest bone graft. Dr. Simpson opined that 

Pignatore's back pain and November 14, 1995 surgery were caused 

by her injury sustained while working for employer. 

 Dr. David Cifu, a physiatrist, performed a medical records 

review for employer. Dr. Cifu opined that the 1992 work-related 

accident was not the cause of Pignatore's current symptoms or the 

surgery. He opined that the surgery was a direct result of 

degenerative disc disease and scarring since 1983. "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). The commission considered the 

totality of the evidence and ruled that Pignatore proved a causal 

connection between her 1995 surgery, and resulting disability, 

and her compensable 1992 injury by accident. In so ruling, the 

commission found that "[t]he compensable injury, in fact was 

superimposed upon [Pignatore's] preexisting back condition." See

Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 

S.E.2d 32, 34 (1993). Noting that Dr. Kyles did not attribute 
 4 

Pignatore's injury solely to the 1992 event, the commission found 

that he did not exclude the 1992 event as a contributing cause. 

The commission further weighed the medical evidence and accepted 

Dr. Simpson's opinion that a causal connection existed between 

the surgery and the compensable injury. Dr. Simpson's opinion 

provides credible evidence to support the commission's decision. 

 "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. 

 In its role as fact finder, the commission was entitled to 

weigh and reject the opinions of Drs. Kyles and Cifu. "[I]t is 

fundamental that a finding of fact made by the Commission is 

conclusive and binding upon this court on review. A question 

raised by conflicting medical opinion is a question of fact." 

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 

(1986). 

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

 Affirmed.