COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Agee and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

BONNIE BE-LO MARKETS AND 

 MERCHANTS OF VIRGINIA GROUP 

 SELF-INSURANCE ASSOCIATION 

 MEMORANDUM OPINION* BY 

v. Record No. 1273-00-1 JUDGE G. STEVEN AGEE 

 MARCH 13, 2001 

BENNY EDWARD HOUSE 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William C. Walker (Donna White Kearney; 

Taylor & Walker, P.C., on brief), for 

appellants. 

 Chanda L. Wilson (Rutter, Walsh, Mills & 

Rutter, L.L.P., on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Bonnie Be-Lo Markets and its insurer (hereinafter referred 

to as "employer") contend on appeal that the Workers' 

Compensation Commission erred in its May 4, 2000 opinion which 

held that Benny Edward House (claimant) proved that (1) he 

sustained a compensable injury by accident on December 5, 1997; 

and (2) that he has been totally disabled since December 5, 

1997, as a result of the December 5, 1997 injury by accident. 

We affirm the decision of the Workers' Compensation Commission. 
BACKGROUND

 The claimant had worked for the employer as a meat cutter 

since 1995. Before December 5, 1997, claimant suffered from 

back problems for which he had undergone seven back surgeries, 

the last of which occurred in July 1997. Following the July 

1997 back surgery, claimant remained out of work until November 

3, 1997. Claimant's treating physician, Dr. Mark B. Kerner, 

executed a document dated October 29, 1997, which said only the 

following: 

Benny House is able to return to his full 

time work duties as a meat cutter without 

restriction on 11/3/97. 

 Claimant testified that before he returned to work on 

November 3, 1997, Dr. Kerner did not tell him that he should 

avoid performing work which required heavy lifting. Claimant 

testified that Dr. Kerner told him to wear a back brace and to 

be careful as to how he lifted objects. Claimant stated that he 

wore a back brace after he returned to work in November 1997 

when his job necessitated heavy lifting. 

 After claimant returned to work as a meat cutter on 

November 3, 1997, he was able to perform his regular duties, 

including heavy lifting, up until December 5, 1997. Claimant 

testified that on December 5, 1997, he tried to move a case of 

meat weighing approximately one hundred pounds from the floor to 

a dolly. As he did so, he experienced pain in his back that 

radiated into his right hip and right leg. Claimant was wearing 

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a back brace at the time of the accident. After the December 5, 

1997 incident, claimant again sought medical treatment from Dr. 

Kerner. Claimant has not returned to work since December 5, 

1997. 

 Dr. Kerner wrote several letters to counsel or insurance 

carriers after his initial treatment of the claimant for the 

December 5, 1997 injury. Reflective of that correspondence is a 

letter of January 14, 1998 to Trigon in which Dr. Kerner wrote: 

I did not give the patient permission to go 

back to his usual and customary duties. 

Quite the opposite. I told him it would be 

foolish and wrong for him to return to that 

work. 

 All of Dr. Kerner's recorded statements of this type are 

after the December 5, 1997 accident. 

 On December 9, 1997, Dr. Kerner diagnosed "a work related 

flare of injury . . ." and opined that "the patient appears 

unable to return to his usual and customary work . . . ." 

ANALYSIS

 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). 

Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. See James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

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I. Injury by Accident

 Employer argues that claimant failed to prove he sustained 

an "accident" on December 5, 1997, as defined by the Workers' 

Compensation Act, on the ground that claimant's December 5, 1997 

back injury was the foreseeable result of his returning to work 

as a meat cutter, which required heavy bending, lifting and 

twisting, contrary to Dr. Kerner's instructions to avoid such 

work. The commission rejected this argument and found as 

follows: 

The claimant testified that he did not have 

any restrictions resulting from his 

pre-existing back condition. His testimony 

is supported by [Dr. Kerner's] October 29, 

1997, release "to return to his regular 

full-time duties as Meat Cutter without 

restriction on 11/3/97." This release is 

clear and not subject to interpretation. 

Claimant's testimony, coupled with Dr. Kerner's unequivocal 

written release allowing claimant to return to full-time work as 

a meat cutter without restriction as of November 3, 1997 

constitutes credible evidence to support the commission's 

finding that claimant sustained a compensable injury by 

accident. The commission, as fact finder, was entitled to 

accept claimant's testimony that before December 5, 1997, Dr. 

Kerner never told him to avoid work that required heavy lifting, 

and to reject Dr. Kerner's post-December 5, 1997 office notes 

and letters to the contrary. "In determining whether credible 

evidence exists, the appellate court does not retry the facts, 

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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.

II. Disability

 In ruling that claimant proved that he was totally disabled 

beginning December 5, 1997 and that such disability was causally 

related, at least in part, to his December 5, 1997 injury by 

accident, the commission found as follows: 

The record does not reflect that Dr. Kerner 

released the claimant to light-duty work. 

The employer notes that in his January 14, 

1998, letter to the insurer, Dr. Kerner 

wrote that the claimant was able to perform 

light-duty employment. In that letter, Dr. 

Kerner stated that: "He has to basically do 

light sedentary activities with his back. 

He can do no heavy bending, lifting, or 

twisting . . . ." However, Dr. Kerner also 

stated that at times, the claimant "is 

entirely incapacitated." It is unclear 

whether Dr. Kerner believes the claimant is 

capable of returning to light-duty work. In 

any event, he has not communicated any 

release to the claimant. An employee is not 

required to market his residual work 

capacity until after he has been advised of 

his release to light-duty employment. 

 "Medical evidence is not necessarily conclusive, but is 

subject to the commission's consideration and weighing." 

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 215 (1991). Furthermore, "[t]he actual 

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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). 

 As fact finder, the commission was entitled to weigh the 

medical evidence. Based upon Dr. Kerner's December 9, 1997 

office notes and his August 13, 1999 letter to claimant's 

counsel in which he indicated that "[t]he incremental increase 

in [claimant's] disability from such an injury would not be 

considered to be more than 5 or 10 percent of his total 

disability . . . [,]" the commission was entitled to infer that 

claimant's post-December 5, 1997 disability was causally 

related, at least in part, to his December 5, 1997 injury by 

accident. 

 Moreover, as fact finder, the commission could infer that 

the language contained in Dr. Kerner's January 14, 1998 letter 

did not constitute a release to light-duty work. While Dr. 

Kerner commented that claimant engaged in light-sedentary 

activities, he also noted that claimant could not perform heavy 

lifting, bending or twisting and was totally incapacitated at 

times. The commission could conclude Dr. Kerner did not 

specifically release claimant to light or sedentary work. 

"Where reasonable inferences may be drawn from the evidence in 

support of the commission's factual findings, they will not be 

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disturbed by this Court on appeal." Hawks v. Henrico County 

Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). 

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

 Affirmed.

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