COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Willis and Senior Judge Hodges
Argued at Salem, Virginia
TIMOTHY K. DUNCAN
v. Record No. 1320-94-3 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
ABF FREIGHT SYSTEM, INC. MAY 23, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Deborah W. Dobbins (Debra Fitzgerald-O'Connell;
Gilmer, Sadler, Ingram, Sutherland & Hutton,
on briefs), for appellant.
Roger L. Williams (Roya Palmer; Williams &
Pierce, on brief), for appellee.
On appeal from a decision of the Virginia Workers'
Compensation Commission terminating his temporary total
disability benefits, Timothy K. Duncan contends (1) that no
credible evidence supports the commission's finding that he was
released to pre-injury work and that his continuing disability
was not causally related to his June 10, 1992 compensable injury,
(2) that the commission erred in failing to conduct an
evidentiary hearing, and (3) that the "on the record" hearing
conducted by the commission violated his right to due process of
law. We find no error and affirm the commission's decision.
I.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
The findings of the commission, if based on credible evidence,
are conclusive and binding on this Court. Morris v. Badger
Powhatan/Figgie Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,
877 (1986).
On December 31, 1992, Duncan's treating physician, Dr.
Korsh, released Duncan to return to his pre-injury work. Dr.
Korsh reiterated this release on April 20, 1993. This credible
evidence supports the commission's finding that Duncan was
released to perform pre-injury work with regards to his
compensable back injury. "[W]hen an attending physician is
positive in his diagnosis, great weight will be given by the
courts to his opinion." Pilot Freight Carriers, Inc. v. Reeves,
1 Va. App. 435, 439, 399 S.E.2d 570, 572 (1986).
II.
Duncan contends the commission's finding that his present
condition is not causally related to his compensable industrial
injury by accident is not supported by credible evidence. He
argues that Dr. Horney found that the pain in his lower back and
right testicle resulted from his June 10, 1992 accident.
The evidence provided by the examining physicians
established that Duncan suffered from testalgia, but none of the
physicians found any physiological basis to relate that condition
to his compensable back injury. Duncan's claimed diagnosis by
Dr. Horney was not part of the record before the commission. The
evidence in the record shows the following: Dr. Morin, an
orthopaedist, found that Duncan suffered from a lumbosacral
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strain, but could not relate that condition to the testalgia.
Dr. Korsh, a spinal surgeon, found that Duncan "has a very
strange pain pattern not consistent with any normal neurological
pattern." His overall impression was "that the patient most
likely has no pathology emanating from his lumbar spine." Dr.
Poffenberger, a urologist, diagnosed Duncan with bilateral
testalgia, but stated it was more of a "musculoskeletal problem"
than a urologic one. Dr. Hormel, a neurologist stated, "I cannot
relate it clearly to his lumbar spine although certainly some
people who have lumbar stenosis can get testalgia . . . . It is
possible . . . that his medications are contributing to his
testalgia . . . ." Dr. Joiner, an orthopaedist, limited Duncan
to restrictive work duties, but never related the testalgia to
the compensable back injury. Additionally, Duncan underwent a
CT-scan, two MRI's, and a post-trauma myelogram, which showed no
abnormality. This credible evidence supports the commission's
finding.
III.
Duncan contends that the deputy commissioner erred in
denying an evidentiary hearing. By letter of July 22, 1993, the
deputy commissioner denied Duncan's request for an evidentiary
hearing and concluded that "the single issue to be resolved in
this matter is a medical issue, that matter can be resolved in
the Dispute Resolution Department in an on-the-record hearing."
Duncan argues that material issues remained in dispute. However,
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Duncan did not request the full commission to review the deputy
commissioner's denial of an evidentiary hearing. Decisions of a
deputy commissioner that are not reviewed by the full commission
cannot be brought before this Court. Southwest Architectural
Products v. Smith, 4 Va. App. 474, 478, 358 S.E.2d 745, 747
(1987).
IV.
Duncan contends that the deputy commissioner's "on the
record" review of the case denied him due process. He argues
that the "on the record" review did not afford him an adequate
opportunity to be heard.
The deputy commissioner's utilization of the "on the record"
hearing procedure satisfied the requirements of due process.
"[D]ue process is flexible and calls for such procedural
protections as the particular situation demands." Mathews v.
Eldridge, 424 U.S. 319, 334 (1976). "[T]he fundamental requisite
of due process of law is the opportunity to be heard." Goldberg
v. Kelly, 397 U.S. 254, 267 (1970). An evidentiary hearing was
not required in this case because no conflict or dispute existed
in the claimant's medical evidence. See Williams v. Virginia
Elec. & Power Co., 18 Va. App. 569, 577, 445 S.E.2d 693, 698
(1994). The issues to be decided were whether the claimant had
been released to pre-injury employment with respect to the
industrial injury by accident, and whether his present condition
was causally related to his compensable injury. An evidentiary
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hearing would have produced no additional medical evidence to
refute Duncan's assertion that he had not been released to his
pre-injury work and that his present condition was causally
related to his industrial accident. Because no genuine
controversy existed, the "on the record" hearing procedure met
the requirements of due process.
For the foregoing reasons, we affirm the decision of the
commission.
Affirmed.
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