COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Bumgardner 

Argued at Alexandria, Virginia 

GIODAN, INC., ET AL. 

 MEMORANDUM OPINION* BY 

v. Record No. 1302-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 JANUARY 13, 1998 

MERCEDES MENDEZ 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William H. Schladt (Ward & Klein, Chartered, 

on brief), for appellants. 

 Manuel R. Geraldo (Robinson and Geraldo, on 

brief), for appellee. 

 Giodan, Inc. (employer) and its insurer, Great American 

Insurance Company, appeal the Workers' Compensation Commission's 

award of total temporary disability benefits to Mercedes Mendez 

(claimant), contending that claimant's back injury is not 

causally related to his compensable knee injury. Finding no 

error, we affirm. 

 Claimant is an unskilled laborer from El Salvador who speaks 

only Spanish, and cannot read or write in any language. He was 

involved in a work-related accident on April 14, 1995, prior to 

the time he was hired by employer. After receiving treatment, he 

returned to light duty. Upon his return to regular work, 

claimant re-injured himself on July 7, 1995. On July 28, 1995, 

Dr. Neil Kahanovitz diagnosed claimant with "purely mechanical" 

 

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

designated for publication. 
2 

low back pain. On November 2, 1995, Dr. Kahanovitz noted that 

claimant had a "slightly positive leg raising" test. Dr. 

Kahanovitz directed treatment of claimant until November 13, 

1995. In his letter of November 13, 1995, Dr. Kahanovitz wrote, 

"There is no evidence of any disk herniation. At this time, 

there has been no change in the patient's primary diagnosis of 

mechanical pain . . . ." 

 On February 22, 1996, shortly after being employed by 

employer, claimant slipped while carrying a table down a flight 

of stairs. Claimant testified that when he slipped, he twisted 

his back and knee. The Employer's First Report of Accident lists 

only an injury to claimant's left knee. 

 Claimant received treatment at the hospital and was referred 

to Dr. Allan Mishra, an orthopedist. Claimant testified that he 

had back pain immediately after the accident and told the 

hospital doctor about the back pain. Claimant also testified 

that he did not have back pain during the period immediately 

prior to his accident on February 22, 1996. The hospital 

referred claimant to Dr. Allan Mishra, an orthopedist. 

 Dr. Mishra's initial report does not explicitly mention 

claimant's back pain, but notes that he had examined x-rays of 

claimant's back and knee and that he directed claimant to undergo 

an MRI of his back and knee. An MRI of claimant's knee revealed 

a meniscal tear, and an MRI of claimant's back showed central and 

right-side herniation of claimant's L5-S1 disk. 
3 

 

 In a report dated April 16, 1996, Dr. Mishra notes that, "In 

the past[, claimant] has had back pain but denied any leg pain. 

This new episode could represent a new injury to the back or 

radicular symptoms." On May 7, 1996, Dr. Mishra noted that, 

"Clinically he has sciatica1

 and left knee medial meniscus tear. 

 We again feel that the majority of his symptoms are coming from 

his back and his knee as a secondary issue at this time." On May 

9, claimant filed a claim for benefits. 

 On June 3, 1996, Dr. Mishra summarized his treatment of 

claimant up to that point. His report states in relevant part: 

 It should be noted that [claimant] had 

previous back pain which is documented in his 

chart in 1995. 

 He was seen by Dr. Kahanovitz. At that 

time he was extensively worked up and noted 

not to have straight leg raising reproducing 

pain down his leg and had an MRI. The report 

says in his note of 11/95 there was a mild 

disk bulging but no frank disk herniation. 

The symptoms he presented with in my office 

in March and April, 1996 were different from 

the symptoms he had in 1995. 

 He subsequently returned on 4/16/96 with 

results of his MRI's which I had the reports 

to review but not the actual films. The 

report states the 4/8/96 MRI of his back 

showed degenerative changes at L4-5 and L5-S1 

with a central and right-sided disc 

herniation at L5-S1 with compression of the 

S1 nerve root. This is a report that is 

different than his previous MRI of 

11/95. . . . At that time I noted that this 

new episode could represent a new injury to 

the back because he did not have a positive 

 1Sciatica is defined as "a syndrome characterized by pain 

radiating from the back into the buttock and into the lower 

extremity along its posterior or lateral aspect." Dorland's 

Illustrated Medical Dictionary 1493 (28th ed. 1994). 
4 

straight leg raising test in the past. . . . 

 He was subsequently seen on 

5/7/96. . . . Clinically, again at that 

time, I felt he had sciatica and a tear of 

the medial meniscus. I again thought that 

treatment of his back was more important than 

treatment of his knee . . . . 

 

On August 8, 1996, Dr. Mishra again noted that "more of his 

trouble is coming from his back at this time." 

 The deputy commissioner held a hearing on claimant's claim 

for benefits on September 20, 1996. Employer defended on the 

ground that no injury by accident occurred and that claimant had 

a prior injury that was the source of his disability. Employer 

presented the Employer's First Report and the testimony of 

claimant's co-worker to prove that claimant did not complain of 

back pain at the time of the accident. Employer also presented 

evidence of claimant's settlement of his prior workers' 

compensation claim on March 7, 1996, two weeks after the injury 

at issue here, in which claimant's attorney stated that claimant 

"has recovered fully. He has had no substantial problems since 

the 13th of November, 1995. This claimant has returned to work 

already." Claimant signed a notarized statement dated March 8, 

1996, that he understood the settlement did not include medical 

expenses. 

 The deputy commissioner left the record open after the 

hearing to allow employer's physician the opportunity to review 

the MRIs before making his report. After the hearing, employer 

presented the report of Dr. Charles Lefton, who concluded that 
5 

the MRIs showed nerve root compression only on the right, 

nonsymptomatic side of claimant's back, and that claimant has "at 

the very most muscular ligamentous injury to his lumbar spine." 

 The deputy commissioner issued an opinion on November 25, 

1996 in which it stated that "Dr. Mishra relates claimant's back 

injury to the compensable accident and we find that Dr. Lefton 

concluded that claimant sustained an injury to his back as a 

result of the February 22, 1996 accident." The deputy 

commissioner also stated that the medical evidence was 

insufficient to establish a causal relationship between the 

accident and claimant's herniated disc, although "there is 

sufficient evidence to establish a muscular ligamentous injury to 

the back and a left knee injury [arising from the accident] 

resulting in the disability alleged." 

 Upon review before the full commission, the decision of the 

deputy commissioner was affirmed. The commission noted that 

although claimant's initial complaints only involved his knee, he 

reported back pain on his initial visit to Dr. Mishra, and Dr. 

Mishra "relates the claimant's back and knee problems to the 

accident." The commission also agreed with the deputy 

commissioner that claimant's right-sided disc herniation is not 

related to his left-sided symptoms. Claimant testified that he 

told Dr. Mishra of his back injury. On appellate review, we view 

the evidence in the light most favorable to the party prevailing 

below. Brown v. Tidewater Constr. Corp., 19 Va. App. 676, 677, 
6 

454 S.E.2d 42, 42 (1995) (citing R.G. Moore Bldg. Corp. v. 

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

"injury by accident" has three components: (1) an identifiable 

incident; (2) a sudden mechanical or structural change in the 

body; and (3) a casual [sic] connection between the incident and 

the bodily change.'" Ratliff v. Rocco Farm Foods, 16 Va. App. 

234, 238, 429 S.E.2d 39, 42 (1993) (quoting Kane Plumbing, Inc. 

v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988)). 

 Only the issue of causation is at issue in this case, and a 

determination of causation is a factual finding. CLC Constr., 

Inc. v. Lopez, 20 Va. App. 258, 265, 456 S.E.2d 155, 158 (1995) 

(citing Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 

S.E.2d 814, 817 (1989)). "We do not retry the facts before the 

Commission nor do we review the weight, preponderance of the 

evidence, or the credibility of witnesses. If there is evidence 

or reasonable inference that can be drawn from the evidence to 

support the Commission's findings, they will not be disturbed by 

this Court on appeal, even though there is evidence in the record 

to support contrary findings of fact." Caskey v. Dan River 

Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). 

 In order to demonstrate causation, a claimant must show that 

it is more probable than not that his or her disability was 

caused by a compensable accident. See Westmoreland Coal Co. v. 

Campbell, 7 Va. App. 217, 224, 372 S.E.2d 411, 416 (1988). "If 

it is just as likely that the disabling condition resulted from a 
7 

cause which is not compensable as it is that it resulted from an 

accident covered by the Workers' Compensation Act, the employee 

has failed to establish the requisite causal connection." King's 

Market v. Porter, 227 Va. 478, 484, 317 S.E.2d 146, 149 (1984) 

(citing Carter v. Hercules Powder Co., 182 Va. 282, 288, 28 

S.E.2d 736, 738 (1944)). In other words, the claimant must 

establish causality by a preponderance of the evidence. 

I. 

Claimant's Muscular Ligamentous Injury 

 On appeal, employer contends that the commission's decision 

is without credible evidence to support it because claimant did 

not suffer back pain until several weeks after the accident, 

because Dr. Mishra was incorrect in relating the back injury to 

the accident, and because Dr. Lefton concluded that claimant's 

muscular ligamentous back problem was the result of an earlier 

injury. We disagree. 

 As claimant's attending physician, Dr. Mishra's opinion is 

entitled to substantial weight. Bassett Burkeville Veneer v. 

Slaughter, 21 Va. App. 575, 580, 466 S.E.2d 127, 129 (1996) 

(citing C.D.S. Constr. Servs. v. Petrock, 218 Va. 1064, 1071, 243 

S.E.2d 236, 241 (1978)). Contrary to employer's claim, Virginia 

law does not require that Dr. Mishra explicitly state that 

claimant's accident "more probably than not" caused his back 

injury; indeed, if the evidence as a whole is sufficient to prove 

causation, medical testimony is not required at all. Turcios v. 
8 

Holiday Inn Fair Oaks, 24 Va. App. 509, 518, 483 S.E.2d 502, 505 

(1997). 

 Although employer presented evidence, and the deputy 

commissioner found, that claimant did not complain of back pain 

prior to March 18, 1996, that gap in time is not fatal to 

claimant's claim, given that Dr. Mishra found a causal connection 

between the accident and the back injury. Furthermore, the 

commission could consider claimant's testimony that he did 

experience back pain immediately after the accident. See Dollar 

General Store v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 

154 (1996) (citing Morris v. Badger Powhatan/Figgie Int'l, Inc., 

3 Va. App. 276, 281, 348 S.E.2d 876, 878 (1986)). 

 Finally, employer's own physician acknowledged that claimant 

may have had a muscular ligamentous injury to his back. To 

whatever extent Dr. Lefton concluded that claimant had not been 

injured, the commission was entitled to determine the weight to 

assign Dr. Lefton's report. Street v. Street, 25 Va. App. 380, 

387, 488 S.E.2d 665, 668 (1997) (en banc) (citing Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986)). 

 In short, employer asks this Court to weigh the evidence and 

find in its favor. Employer's contrary evidence, however, is 

immaterial on appellate review as long as credible evidence 

supports the decision of the commission. Lopez, 20 Va. App. at 

266-67, 456 S.E.2d at 158 (citing Wagner Enters., Inc. v. Brooks, 

12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). We find no 
9 

error in the commission's finding that claimant suffered a 

compensable muscular ligamentous injury. 

II. 

Claimant's Herniated Disk 

 Claimant contends on appeal that the commission's finding 

that the compensable accident caused claimant's muscular 

ligamentous back injury but not his herniated disc is logically 

flawed and that claimant's medical history supports a finding of 

causation.2

 As the party seeking relief, claimant bore the burden of 

proof on the issue of causation. Falls Church Constr. Corp. v. 

Valle, 21 Va. App. 351, 360, 464 S.E.2d 517, 522 (1995) (citing 

Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 

S.E.2d 305, 306 (1989)). Neither the claimant nor any of the 

doctors offered an opinion that the accident caused claimant's 

herniated disc. Dr. Lefton observed that while claimant showed 

herniation on his right side, claimant's pain originates on his 

left side.3

 The only evidence which claimant points to in 

 

 2Despite the fact that claimant did not file a notice of 

appeal, he may raise "additional questions separate from those 

presented by the appellant, and any additional relief sought 

separate from that requested by the appellant" under Rule 5A:21. 

D'Auria v. D'Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 

(1986). 

 3Claimant argues that he was denied due process by the 

deputy commissioner's decision to keep the record open and 

receive Dr. Lefton's report into evidence. Although deputy 

commissioners have broad discretion to adapt the conduct of 

hearings to the circumstances of the case, the proceedings must 

comply with due process. Daniel Constr. Co. v. Tolley, 24 Va. 
10 

support of his claim is the fact that Dr. Kahanovitz concluded on 

November 7, 1995 that claimant showed no disc herniation, while 

claimant showed disc herniation on April 8, 1996. We find that 

credible evidence supports the conclusion of the commission that 

the herniated disk is unrelated to claimant's injury and that the 

commission's decision was not plainly wrong. 

 For these reasons, we affirm. 

 Affirmed.

 App. 70, 78, 480 S.E.2d 145, 149 (1997). Claimant's contention 

is without merit. Nothing in the record supports the conclusion 

that the deputy commissioner's decision to accept post-hearing 

evidence only from employer was an abuse of discretion. See id.

at 78-79, 480 S.E.2d at 149. Furthermore, although claimant knew 

at the hearing that the deputy commissioner was holding the 

record open, he did not raise this argument at the hearing or 

after the report had been received. Therefore, he is barred from 

raising this issue on appeal. Rule 5A:18.