COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

GIANT FOOD, INC. 

AND 

LUMBERMENS MUTUAL CASUALTY COMPANY 

v. Record No. 2189-94-4 MEMORANDUM OPINION*

 PER CURIAM 

MARTIN R. ROOF MAY 9, 1995 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (Deborah A. Farson; Jordan, Coyne & Savits, on 

briefs), for appellants. 

 (Charles W. O'Donnell, on brief), for appellee. 

 Giant Food, Inc. and its insurer (hereinafter collectively 

referred to as "employer") contend that the Workers' Compensation 

Commission erred in finding that (1) Martin R. Roof proved a 

causal connection between his compensable July 31, 1991 injury by 

accident and his October 1993 back surgery and resulting 

disability; and (2) Roof's claim, filed on September 27, 1993, 

was timely because employer did not file the First Report of 

Accident until September 22, 1993, after the two-year statute of 

limitations had run. 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. 

 

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

designated for publication. 
 2 

 I. 

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

to the party prevailing below. 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 existence of contrary 

evidence in the record is of no consequence if there is credible 

evidence to support the commission's finding." Wagner Enters., 

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

"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). 

 The medical records and reports of Dr. Robert F. Lehman, the 

treating physician, provide credible evidence to support the 

commission's finding that the July 31, 1991 injury by accident 

aggravated Roof's pre-existing disc condition, and that the 

October 1993 surgery and resulting disability were caused by this 

aggravation. Specifically, Dr. Lehman's August 8, 1991 notes 

substantiate Roof's testimony that, prior to July 31, 1991, his 

back pain was minor and intermittent, and that, on that date, his 

back and leg pain significantly increased. In his September 30, 

1993 report, Dr. Lehman stated that the compensable accident 
 3 

caused an aggravation of Roof's pre-existing facet abnormality. 

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

Dr. Lehman's records, and to accept his conclusion that the workrelated accident aggravated Roof's pre-existing back condition 

and led to his surgery and resulting disability. The commission 

was also entitled to discount the opinion of Dr. Edward G. 

Alexander, an orthopedic surgeon who examined Roof at employer's 

request. 

 When an injury sustained in an industrial accident 

accelerates or aggravates a pre-existing condition, disability 

resulting therefrom is compensable. Russell Loungewear v. Gray, 

2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). Accordingly, the 

commission did not err in finding that Roof proved a causal 

connection between his compensable July 31, 1991 accident and his 

October 1993 surgery and resulting disability. 

 II. 

 The commission held that Roof's claim, filed on September 

27, 1993 with respect to the July 31, 1991 accident, was timely. 

 This conclusion was based upon the commission's finding that the 

employer did not file the First Report of Accident until after 

the two-year limitations period for filing a claim had expired.1

 In order to toll the limitations period pursuant to Code 

§ 65.2-602, Roof was required to prove that (1) the employer had 

 

 1The full commission did not find that estoppel applied in 

this case to toll the limitations period. 
 4 

notice of the July 31, 1991 accident; (2) the employer failed to 

file the First Report of Accident as required by Code § 65.2-900; 

and (3) such conduct prejudiced Roof's rights with respect to 

filing a claim with the commission prior to the expiration of the 

two-year limitations period. 

 It was undisputed that employer had notice of the accident, 

and that employer did not file the First Report of Accident until 

after the two-year limitations period had expired. With respect 

to the issue of prejudice, there was no evidence that Roof ever 

received the Workers' Compensation Guide or other notice of his 

need to file a claim. If employer had filed the First Report of 

Accident, Roof would have received the proper notice, and he 

would have had the opportunity to file a timely claim. Roof and 

his wife testified that if they had known they were required to 

file a claim with the commission they would have done so in a 

timely manner. Based upon this record, the commission did not 

err in finding that the two-year limitations period was tolled 

until September 22, 1993. 

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

 Affirmed.