COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
TRAVCORP AND
HARTFORD ACCIDENT & INDEMNITY CO.
MEMORANDUM OPINION*
v. Record No. 2068-02-4 PER CURIAM
DECEMBER 10, 2002
FAUSTINE I. COOPER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roger L. Williams; John T. Cornett, Jr.;
Williams & Lynch, P.C., on brief), for
appellants.
(Gregory P. Perigard; Burgess, Kernbach &
Perigard, PLLC, on brief), for appellee.
Travcorp and its insurer (hereinafter referred to as
"employer") contend the Workers' Compensation Commission erred
in denying its change-in-condition application on the grounds
that it failed to prove that Faustine I. Cooper (claimant) was
no longer disabled as a result of her June 26, 2000 compensable
injury by accident and that she was capable of returning to her
pre-injury work as of December 3, 2001. Upon reviewing the
record and the parties' briefs, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"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
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)). Unless we can say as a matter of law that
employer's evidence sustained its burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
As support for its application, employer submitted the
December 3, 2001 report of independent medical examiner
Dr. Steven Hughes. Dr. Hughes, who examined claimant at
employer's request on one occasion on December 3, 2001, opined
that she should return "to a full unrestricted duty status as
soon as possible. She reached maximum medical improvement
within four months of the onset of her lifting injury."
Dr. Hughes also believed that claimant had "marked evidence of
symptom magnification."
Claimant's treating physician, Dr. Ted Lee, completed an
"Occupational Medicine Final Report" and opined that claimant
"has reached a plateau at this time and she is to be declared
permanent and stationary as of today, that is February 13,
- 2 -
2001." Dr. Lee further opined that claimant could not perform
"heavy work" and that she was "incapable of doing her usual,
regular job." Dr. Hawani Temesgen noted on January 28, 2002,
that claimant was "under my care and other Kaiser [Permanente]
staff physicians care since July 2000 . . . [, that] claimant is
being treated for low back pain following an on the job injury
[of] June 26, 2000 . . . [and that claimant] remains totally
disabled pending further evaluation and testing."
"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). In denying employer's application, the
commission weighed the medical evidence, rejected Dr. Hughes'
opinion, and accepted Dr. Lee's opinion, which it found to be
corroborated by Dr. Temesgen's opinion. "Questions raised by
conflicting medical opinions must be decided by the commission."
Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989).
The commission articulated its reasons for giving more
weight to the opinions of Drs. Lee and Temesgen than to the
opinion of Dr. Hughes, the independent medical examiner. The
commission noted that as a treating physician, Dr. Lee was in a
better position to opine as to claimant's medical condition than
Dr. Hughes. Although the commission recognized that the record
did not contain Dr. Temesgen's examination notes, the commission
- 3 -
reasonably inferred from credible evidence in the record that
Dr. Temesgen, a staff physician at Kaiser Permanente where
claimant had received treatment from various physicians, treated
claimant. The commission did not err in giving weight to
Dr. Temesgen's opinion. Furthermore, the commission noted that
Dr. Hughes' opinion that claimant reached maximum medical
improvement within four months of her June 26, 2000 compensable
injury, conflicted with the commission's finding that claimant
remained disabled at that time as a result of her compensable
work accident. This Court affirmed that opinion.
In light of the opinions of Drs. Lee and Temesgen, we
cannot find as a matter of law that employer's evidence
sustained its burden of proving that claimant was no longer
disabled as a result of her compensable accident and that she
had been released to return to her pre-injury work.
For these reasons, we affirm the commission's decision.
Affirmed.
- 4 -
Travcorp v. Faustine I Cooper
Combined Opinion