COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

McMURPHY COAL COMPANY 

AND 

OLD REPUBLIC INSURANCE COMPANY 

v. Record No. 1389-95-3 MEMORANDUM OPINION*

 PER CURIAM 

EDDIE LEE MILLER OCTOBER 31, 1995 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (S. T. Mullins; Street, Street, Street, Scott & 

Bowman, on brief), for appellants. 

 (Paul L. Phipps; Wolfe & Farmer, on brief), for 

appellee. 

 McMurphy Coal Co. and its insurer (hereinafter collectively 

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

Commission erred in finding that (1) Eddie L. Miller proved he 

sustained an injury by accident arising out of and in the course 

of his employment on November 13, 1992; and (2) a causal 

relationship exists between Miller's disc herniation and 

resulting disability and the November 13, 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. 

 

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

designated for publication. 
 2 

Background

 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). So 

viewed, the evidence proved that, on November 13, 1992, while 

working for employer as a scoop operator, Miller ran over a rock, 

which caused his head and shoulders to hit the mine roof. He 

felt pain over his entire body, which subsided after 

approximately fifteen minutes. On that same day, he told his 

supervisor, Bobby Ridings, about the accident. Miller's back 

pain gradually worsened throughout December 1992. On December 

28, 1992, he was pulling cable into a scoop and felt severe back 

pain. This incident was witnessed by Ridings. 

 On December 30, 1992, Miller sought medical treatment from 

Dr. Wolfgang Zahnke, a general surgeon. Miller told Dr. Zahnke 

that his back pain began approximately one month earlier. An MRI 

performed in January 1992 revealed that Miller suffered from a 

herniated disc at the L5-S1 level on the right. 

 On February 2, 1993, Miller's physical therapist noted that 

Miller attributed his back injury to an incident at work on 

November 16, 1992, when he was operating a scoop machine and ran 

over a rock. 

 On February 10, 1992, Miller told Dr. S.C. Kotay, an 

orthopedic surgeon, that he injured his back on November 13, 

1992, when he ran over a rock while operating a scoop machine at 
 3 

work. In his February 12, 1993 Attending Physician's Report, Dr. 

Kotay attributed Miller's disc herniation and resulting 

disability to the November 13, 1992 incident. 

 Dr. Phillip O. Tibbs, a neurosurgeon, who performed surgery 

on Miller's back, opined that the November 1992 accident caused 

Miller's disc herniation and subsequent surgery. 

 Miller gave two recorded statements to employer's 

representatives, one on February 8, 1993 and one on March 11, 

1993. In both statements, Miller mentioned the November 13, 1992 

incident, but he acknowledged that he was unsure of the exact 

cause of his back injury. 

Injury by Accident

 "In order to carry [the] burden of proving an 'injury by 

accident,' a claimant must prove that the cause of [the] injury 

was an identifiable incident or sudden precipitating event and 

that it resulted in an obvious sudden mechanical or structural 

change in the body." Morris v. Morris, 238 Va. 578, 589, 385 

S.E.2d 858, 865 (1989). The commission found that Miller 

sustained an injury by accident arising out of and in the course 

of his employment on November 13, 1992. Miller's undisputed 

testimony, essentially corroborated by Ridings, provides ample 

credible evidence to support the commission's finding. Thus, 

that finding is conclusive on this appeal. James v. Capitol 

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 

(1989). 
 4 

 In rendering its decision, the commission also considered 

the various medical histories and Miller's recorded statements, 

and resolved any conflicts in this evidence in favor of Miller.1

 "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 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. 

Causation

 "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 medical records and opinions of Drs. Kotay and Tibbs 

provide credible evidence that link Miller's disc herniation, 

surgery, and disability to the November 13, 1992 injury by 

accident. 

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

 Affirmed.

 

 1In a March 21, 1995 opinion, we remanded this case to the 

commission for it to consider all relevant evidence, including 

the medical histories, in order to determine whether Miller 

proved that he sustained a compensable injury. McMurphy Coal Co. 

v. Miller, 20 Va. App. 57, 455 S.E.2d 265 (1995).