COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

CAVALIER MINING, INC. 

AND 

TRAVELERS INSURANCE COMPANY MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 1071-96-3 OCTOBER 8, 1996 

 

DAVID E. MULLINS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Jim H. Guynn, Jr.; Guynn & Clemens, on 

brief), for appellants. 

 (Robert B. Hines II, on brief), for appellee. 

 Cavalier Mining, Inc. and its insurer (hereinafter 

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

Compensation Commission ("commission") erred in finding that as 

of January 17, 1995, David E. Mullins ("claimant") remained 

disabled from performing his pre-injury job due to his 

compensable September 17, 1994 back injury. 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. 

 As a threshold issue, employer contends that the commission 

erred in placing the burden of proof upon it. We disagree and 

find, based upon this record, that the commission correctly 

concluded that 

 [b]ecause [employer] failed to timely solicit 

 

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

designated for publication. 
 2 

and file agreements for an accepted claim 

that would have resulted in an enforceable 

award from the Commission, we will presume 

one was entered to avoid giving the carrier 

an advantage by virtue of such neglect. 

Accordingly, the burden is on the employer to 

present grounds to show that the presumed 

award should be terminated. National Linen 

Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 

187 (1987) . . . . 

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

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

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

Unless we can say as a matter of law that employer's evidence 

proved claimant's compensable lower back injury no longer 

disabled him from performing his pre-injury work after January 

17, 1995, the commission's findings are binding and conclusive 

upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 

173 S.E.2d 833, 835 (1970). 

 In awarding benefits to claimant, the commission found as 

follows: 

 we infer and find that the claimant's 

preexisting spondylolisthesis and 

degenerative back disease was [sic] 

materially aggravated by the work accident, 

and the employer is liable for such effects, 

unless and until he has recovered from such 

accident and is returned to his pre-injury 

state. The medical records establish that 

the claimant has never been returned through 

medical treatment or passage of time to his 

preaccident asymptomatic condition. Rather 

it is clear from the medical records that he 

has remained symptomatic and under the care 

of a physician for the back injury since the 

accident.1 

 

 1The medical evidence showed that claimant sustained an 
 3 

 These findings are amply supported by the medical records of 

the treating physician, Dr. Kelly Taylor, and the December 2, 

1994 Attending Physician's Report of Dr. S. C. Kotay, the 

treating orthopedic surgeon. "Where reasonable inferences may be 

drawn from the evidence in support of the commission's factual 

findings, they will not be disturbed by this Court on appeal." 

Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 

695, 698 (1988). 

 Viewing the evidence in the light most favorable to 

claimant, we cannot say as a matter of law that employer's 

evidence proved claimant's compensable back injury no longer 

disabled him from performing his pre-injury job after January 17, 

1995. Accordingly, we affirm the commission's decision. 

 Affirmed.

 

acute back strain in 1966. At that time, he was diagnosed as 

suffering from spondylolisthesis. In 1990, claimant sustained a 

mild lower back sprain. However, between 1990 and the date of 

claimant's compensable accident, there is no evidence to indicate 

that claimant's back condition was symptomatic or that it ever 

caused him to miss work.