COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and McClanahan
Argued at Salem, Virginia
JAMES NATHAN WALKER
MEMORANDUM OPINION * BY
v. Record No. 3391-02-3 JUDGE ELIZABETH A. McCLANAHAN
JULY 22, 2003
GENERAL SHALE PRODUCTS CORP. AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
George L. Townsend (Chandler, Franklin &
O'Bryan, on briefs), for appellant.
Thomas G. Bell, Jr. (Timberlake, Smith,
Thomas & Moses, P.C., on brief), for
appellees.
James Nathan Walker (claimant) appeals a decision of the
Virginia Workers' Compensation Commission denying his
application to reinstate award benefits based on a change in
condition. Claimant complains that: (1) the commission erred in
holding that claimant's application was time-barred under Code
§ 65.2-708 because the limitations period should have been
tolled due to incapacity under Code § 65.2-528; (2) no credible
evidence supports the commission's finding that claimant was not
incapacitated during the limitations period; (3) the commission
erred by not addressing claimant's argument that estoppel and/or
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
imposition barred employer from asserting the bar of the statute
of limitations; and (4) that the doctrine of imposition should
apply to save claimant's change-in-condition claim from the bar
of the statute of limitations. 1 For the reasons that follow, we
affirm the decision of the commission.
I. Background
Claimant was working for General Shale Products Corp. when,
on October 5, 1988, he suffered extensive, debilitating injuries
in a forklift accident. Employer agreed that the injury was
compensable, and the commission awarded claimant lifetime
medical benefits and temporary total disability benefits.
Claimant was hospitalized at the Medical College of
Virginia for eight to nine months immediately after the
accident, and for additional periods of time until 1994. Since
that time, claimant has not been hospitalized, except for
occasional, injury-related psychiatric treatment. He began
taking medication for depression and other psychological
disorders as early as 1989.
In April 1994, claimant began treatment with Dr. Philip
Halapin, a psychiatrist. Dr. Halapin met with claimant on a
1
We do not address claimant's questions 3 or 4 because they
were not properly preserved. Rule 3.1 of the Rules of the
Virginia Workers' Compensation Commission provides that failure
of a party to assign any specific error in its request for
review may be deemed by the commission to be a waiver of the
party's right to consideration of that error on review. This
Court will not consider those arguments for the first time on
appeal. Rule 5A:18.
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quarterly basis throughout the time period at issue, mainly to
assess claimant's mental status and to adjust his medications as
necessary.
On August 31, 1994, employer filed an application alleging
that between March and August 1994 claimant failed to keep
several medical reevaluation appointments with his treating
doctor at the Medical College of Virginia. 2 After a hearing on
the matter, a deputy commissioner found that claimant had
unjustifiably refused to undergo medical reevaluation and
suspended claimant's benefits. The commission affirmed, stating
that as of August 31, 1994, benefits would remain suspended for
the duration of claimant's refusal to undergo medical
reevaluation.
On November 5, 1998, claimant filed an application to
reinstate benefits based on a change in condition, stating that
he cured his refusal on September 22, 1995. Employer asserted a
defense that the two-year statute of limitations for filing a
change-in-condition application had run; thus, claimant was
time-barred from having his benefits reinstated. Claimant
conceded that the limitations period had run, but asked the
commission to find that the statute of limitations on his
2
Under the Workers' Compensation Act, an employer has the
right to have a claimant examined by a physician. Code
§ 65.2-607.
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change-in-condition application was tolled, pursuant to Code
§ 65.2-528, due to incapacitation.
After presentation of medical evidence at hearing, the
deputy commissioner found that claimant did not prove he was
incapacitated. However, he reinstated claimant's benefits after
holding that the two-year limitations period for filing a
change-in-condition application did not apply because claimant's
benefits were suspended, not terminated.
Upon request for review by employer, the commission
affirmed the deputy commissioner's finding that claimant did not
prove he was incapacitated. However, it denied claimant's
change-in-condition application as time-barred under Code
§ 65.2-708(A), holding that the limitations period did apply to
benefits that had been suspended. This appeal followed.
II. Analysis
In accordance with well established principles, we consider
the evidence in the light most favorable to the party prevailing
below. States Roofing Corp. v. Bush Constr. Corp., 15 Va. App.
613, 616, 426 S.E.2d 124, 126 (1993). "Factual findings by the
commission that are supported by credible evidence are
conclusive and binding upon this Court on appeal." So. Iron
Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1993). The commission's findings, if supported by credible
evidence or reasonable inferences drawn from the evidence, will
not be disturbed upon review, even though the record may contain
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evidence to support a contrary finding. Morris v. Badger
Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d
876, 877 (1986).
The Virginia Workers' Compensation Act defines a
"change in condition" as
A change in physical condition of the
employee as well as a change in the
conditions under which compensation was
awarded, suspended, or terminated which
would affect the right to, amount of, or
duration of compensation.
Code § 65.2-101. Claimant's award suspension affected his right
to compensation. Therefore, once there was a change in the
condition that was the cause for suspension, a
change-in-condition application was the appropriate vehicle with
which to seek reinstatement of benefits.
Review of a change-in-condition application "shall not be
made after twenty-four months from the last day for which
compensation was paid . . . ." Code § 65.2-708(A). Claimant's
benefits were suspended on August 31, 1994; accordingly, the
statute of limitations required that his application to
reinstate benefits had to be reviewed before September 1, 1996.
Claimant made his application on November 5, 1998, well after
the limitation period had run.
Claimant contends that, in his case, the statute of
limitations should have been tolled because he was mentally
incompetent. Code § 65.2-528 states that under the Workers'
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Compensation Act, a time limitation shall not run against any
person who is incapacitated. 3 The claimant has the burden to
prove by credible evidence that he "did not have sufficient mind
or reasoning powers to comprehend the ordinary affairs of life,
or that he had lost control of his mental power to such a degree
as to deprive him of sane and normal action" during the alleged
period of incapacity. Rust Eng'g Co. v. Ramsey, 194 Va. 975,
982, 76 S.E.2d 195, 199-200 (1953). The commission considered
medical evidence presented at hearing by claimant and by
employer. Claimant's case rested primarily on an opinion
expressed in a letter written by his treating physician,
Dr. Halapin, on October 6, 1998, in which the doctor stated that
he diagnosed claimant with a psychotic disorder and
post-traumatic stress disorder. The doctor opined that claimant
had diminished capacity from 1994 to the time of hearing due to
high doses of anti-psychotic medications; these drugs interfered
with claimant's capacity to function, to comprehend ordinary
affairs of life, and to reason to such a degree that it made it
impossible for him to comprehend, remember, and perceive
day-to-day events. Dr. Halapin stated that he arrived at this
3
Code § 65.2-528 was amended effective January 1, 1998 to
substitute "incapacitated" for "mentally incompetent."
Claimant's alleged period of mental incompetence spans the
change in the statute. However, the amendment has no impact on
our analysis, as the term "incapacitated" is broader and
encompasses the term "mentally incompetent."
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opinion after an extensive review of claimant's medical records
and from recollections of meetings with claimant.
The commission found, however, that a review of the medical
records and notes made contemporaneously by Dr. Halapin during
his meetings with claimant did not support the doctor's
after-the-fact observations about claimant's capacity. Over the
period of time at issue, during meetings with claimant, the
doctor wrote notes indicating that claimant was, "alert,"
"stable," had "no psychotic thinking," and was "coping
adequately." Moreover, the evidence showed that Dr. Halapin had
claimant sign several legal documents between 1994 and 1998,
apparently never questioning claimant's competency to do so.
In his deposition testimony, Dr. Halapin conceded that his
after-the-fact opinion letter of October 6, 1998 may have been
"a little overstated." Additionally, Dr. Halapin candidly
admitted that he was interested in helping the claimant get his
benefits, which the commission noted was a well-meaning attempt
to help his patient, but did not overcome the fact that the
contemporaneous medical treatment records did not prove
incompetency or incapacity.
Employer asked Dr. Joel Silverman, Professor and Chairman
of the Department of Psychiatry at the Medical College of
Virginia, to review claimant's medical records. At hearing,
employer entered into evidence a February 12, 1999 letter from
Dr. Silverman to employer's counsel stating that claimant was
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neither incompetent nor incapacitated. He said, "there was
evidence that the patient was competent and had normal
capacity." His opinion was that there was no evidence that
claimant was excessively sedated or that he had negative mental
effects from his medication. He maintained that the medication
actually played a role in improving claimant's functionality,
and noted that a decrease in the medication exacerbated the
claimant's symptoms.
The commission, as fact finder, was entitled to weigh the
medical evidence, and to accept Dr. Silverman's opinion as more
persuasive, and reject Dr. Halapin's opinion. The commission
found Dr. Halapin's opinion was retrospective and inconsistent
with contemporaneous records, which did not support a finding of
incapacity.
On appeal, this Court may not disturb a commission decision
that is supported by credible evidence, even if contrary
evidence exists. Georgia Pacific Corp. v. Robinson, 32 Va. App.
1, 4-5, 526 S.E.2d 267, 268-69 (2000). While this Court has
held that the opinion of a treating physician is entitled to
great weight, the law does not require that the treating
physician's opinion be accepted over that of others. Pilot
Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339
S.E.2d 570, 572 (1986). "Medical evidence is not necessarily
conclusive, but is subject to the commission's consideration and
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weighing." Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675,
677, 401 S.E.2d 213, 215 (1991).
There is credible evidence in the record to support the
commission's finding that claimant failed to prove he was
incapacitated during the time period in which he was required to
file his application so as to toll the applicable statute of
limitations. Accordingly, the decision of the commission is
affirmed.
Affirmed.
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James Nathan Walker v. General Sales Products Corp.
Combined Opinion