COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
HARDEES OF WARSAW VILLAGE #2977,
BODDIE NOELL ENTERPRISES, INC. AND
GAB ROBINS NORTH AMERICA, INC.
MEMORANDUM OPINION*
v. Record No. 1389-02-2 PER CURIAM
SEPTEMBER 24, 2002
LINDA D. CAMPBELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert M. Himmel; Dale W. Webb; Gentry Locke
Rakes & Moore, on brief), for appellants.
(Louis D. Snesil; Louis D. Snesil, P.C., on
brief), for appellee.
Hardees of Warsaw Village #2977, Boddie Noell Enterprises,
Inc. and their insurer (hereinafter referred to as "employer")
contend the Workers' Compensation Commission erred in denying
employer's change-in-condition application. The commission
found that employer failed to prove that Linda D. Campbell
(claimant) was released to perform her pre-injury work and that
her current disability was unrelated to her compensable injury
by accident. 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). 1
On June 3, 1999, claimant sustained a fracture dislocation
of her left toe with subluxation of the joint. On January 18,
2000, Dr. David Antonio performed a left second PIP fusion on
claimant's foot. Pursuant to agreement of the parties, the
commission entered an award for temporary total disability
benefits beginning January 25, 2000.
1
We find no merit in employer's argument that the
commission required it to meet its burden of proof by more than
a preponderance of the evidence. This matter was before the
commission upon employer's change-in-condition application.
Therefore, employer bore the burden of proving its allegations
by a preponderance of the evidence. The commission was entitled
to weigh the totality of the medical evidence and to determine,
as fact finder, that employer's evidence did rise to the level
sufficient to sustain employer's burden of proof.
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On May 1, 2000, Dr. Antonio recommended a repeat
arthrodesis of the second left PIP joint due to claimant's
continuing symptoms. On June 9, 2000, Dr. Antonio performed
that procedure. On July 12, 2000, he removed two pins from
claimant's foot. On August 9, 2000, he referred claimant to
Dr. J. William Van Manen for a second opinion. Dr. Van Manen
eventually took over claimant's treatment upon Dr. Antonio's
recommendation.
On February 1, 2001, Dr. Van Manen reported that a recent
MRI of claimant's foot revealed a lipoma over the dorsum of her
foot. He noted that that part of claimant's foot was still
painful "probably due to the traumatic episode that she
experienced at work." He also noted that "there has been some
irritation to the nerves from the trauma . . . ." Dr. Van Manen
then opined that claimant could go back to work without
restrictions with respect to her right foot. However, he went
on to state, "[o]n the other hand, she does have a problem that
could be relieved with excisional biopsy of the soft tissue
mass." Dr. Van Manen indicated that claimant would contact him
if she desired to go forward with the surgery.
In a February 21, 2001 response to the insurer's question,
Dr. Van Manen agreed that he had released claimant to return to
her pre-injury work and that the soft tissue mass was not
causally related to the work injury.
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On April 2, 2001, employer filed a change-in-condition
application alleging that Dr. Van Manen released claimant to
return to her pre-injury work on March 2, 2001 and that her
current disability was unrelated to her compensable injury by
accident.
On June 6, 2001, Dr. Andrew Worthington, a neurologist,
examined claimant and reported a history of her industrial
accident and Dr. Van Manen's treatment. Claimant complained of
pain radiating from her toe to her buttock and extreme
sensitivity. Dr. Worthington opined as follows:
I, unfortunately, suspect this patient
does have reflex sympathetic dystrophy
["RSD"]. I suspect it came on in
combination with the original injury plus
the surgery. I suspect it probably wasn't
recognized early on. . . . I would
recommend at this point that the patient be
referred to Dr. Steve Long at Commonwealth
Pain Associates so that he may take a look
at her and confirm the diagnosis of RSD if
he so agrees so that he may consider
instituting the proper treatment for
that. . . . This patient has now
unfortunately languished for two years since
her original surgery with what probably
represents untreated RSD and I think it is
probably time for diagnosis and treatment of
the problem.
In a June 27, 2001 response to claimant's attorney's
questions, Dr. Worthington opined that the RSD in claimant's
left lower extremity prevented her from returning to her
pre-injury work.
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Based upon this record, the commission ruled that employer
failed to sustain its burden of proving that claimant had been
released to return to her pre-injury work and that her current
disability was unrelated to her compensable industrial accident.
In so ruling, the commission rejected Dr. Van Manen's
opinions because they conflicted with his office notes, which
indicated that claimant continued to have pain and symptoms. In
addition, Dr. Van Manen's opinion that the soft tissue mass was
not related to the work injury was inconsistent with his
previous office note indicating that the lipoma was probably due
to the traumatic episode at work and recommending that claimant
undergo surgery. The commission gave greater weight to
Dr. Worthington's opinion that claimant suffered from RSD, which
was causally related to her work injury and which prevented her
from returning to her pre-injury work. The commission, as fact
finder, could reasonably infer that Dr. Worthington's use of the
word "suspect" in his office notes, "when viewed in the context
of the [June 27, 2001] letter . . . [was] not . . . speculative
but [that he] ha[d] stated his opinion that the condition is
related."
"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). As fact finder, the commission was
entitled to weigh the medical evidence, to reject Dr. Van
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Manen's opinions based upon their inconsistency with his office
notes, and to give greater weight to Dr. Worthington's opinions.
"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).
Based upon the inconsistencies between Dr. Van Manen's
office notes and his opinions, coupled with Dr. Worthington's
opinions, we cannot find as a matter of law that employer
sustained its burden of proving by a preponderance of the
evidence that claimant was released to her pre-injury work and
that her current disability was unrelated to her compensable
industrial accident.
For these reasons, we affirm the commission's decision.
Affirmed.
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