COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
IMPACT MANAGEMENT SERVICE AND
TWIN CITY FIRE INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 1897-02-1 JUDGE RICHARD S. BRAY
MARCH 11, 2003
CATHY S. FORREST
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William C. Walker (Amanda R. Castel; Taylor &
Walker, P.C., on brief), for appellants.
Matthew H. Kraft (Chanda W. Stepney; Rutter,
Walsh, Mills & Rutter, L.L.P., on brief), for
appellee.
Impact Management Service and its insurer (employer) appeal
a decision of the Workers' Compensation Commission (commission)
denying employer's application to terminate an existing award of
compensation benefits to Cathy S. Forrest (claimant). Employer
contends the commission erroneously found employer's evidence
insufficient to prove claimant had been released to pre-injury
employment. Finding no error, we affirm the commission.
"General principles of workman's compensation law provide
that 'in an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). Thus, unless employer's evidence established
as a matter of law that claimant was fully capable of performing
her pre-injury employment, the decision of the commission is
binding and conclusive on appeal to this Court. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
In support of the application to terminate claimant's
benefits, employer relied upon an "Office Note" of claimant's
physician, Dr. Gary W. Routson, dated September 24, 2001. In
concluding claimant "can do the work," "could go back to work," 1
Dr. Routson cited the "Summary Report" of a "Functional Capacity
Evaluation" (FCE) of claimant. Portions of the summary
referenced by Dr. Routson "suggest[ed] the presence of
sub-maximal effort," an indication claimant could "do more at
times than she . . . states or perceives," and "symptom
magnification," 2 conditions that disqualified claimant as a
1
The "full [FCE] report" is mentioned in the summary as
"appended" but is not a part of the record before us.
2
Although not included in Dr. Routson's note, the summary
also reported that claimant "had significant difficulty, pain
and restricted range of motion bending forward when she was
being measured with the spinal inclinometer . . . ."
- 2 -
"candidate for any type of physical rehabilitation."
Nevertheless, Dr. Routson suggested "the insurance company
evaluate the situation from a rehabilitation status to see what
they can do with [claimant]." 3
Following the FCE and Dr. Routson's report, claimant was
referred to Dr. Singh for "Pain Management" and by Dr. Singh to
Dr. Gerry Smith of Riverside Rehabilitation Institute for like
treatment. Dr. Smith reviewed Dr. Singh's assessment of
claimant, which reported "chronic low back pain and leg pain,"
and performed a physical examination of claimant on October 15,
2001. Dr. Smith's "Impression" included "low back pain" and
"spinal asymmetry/pelvic obliquity," and he recommended claimant
undergo an "EMG study of both legs to rule out radiculopathy,"
together with "hands on physical therapy." In a November 7,
2001 "Certification" to the United States Department of Labor,
Dr. Smith opined that claimant was then "able to work light duty
if available."
Reviewing the instant record, the commission observed that
"the only evidence supporting employer's application was
Dr. Routson's September 24, 2001 office note" and the related
FCE summary. Addressing such evidence, the commission noted
"[i]t was not apparent . . . that Dr. Routson ever performed a
physical examination of . . . claimant" or "reviewed the actual
3
The report did not specifically address claimant's ability
to perform the duties of her pre-injury employment.
- 3 -
test results of the [FCE]." The commission characterized as
"vague" Dr. Routson's conclusion that "claimant was able to 'do
the work'" without "explain[ing] to which 'work' he was
referring" and his recommendation that claimant "be evaluated
'from a rehabilitation status,'" also without elaboration. The
commission, therefore, found employer's evidence "scant and
ambiguous," insufficient to satisfy the burden of proof
necessary to terminate the award.
The commission, as fact finder, weighed the medical
evidence and found Dr. Routson's report unpersuasive. "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). Our review of the record, more particularly
Dr. Routson's note and attendant circumstances, together with
Dr. Smith's subsequent report that claimant was capable of only
light-duty work on November 7, 2001, provides ample support for
denial of employer's application to terminate her benefits.
Accordingly, we affirm the decision of the commission.
Affirmed.
- 4 -