COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
UNITED PARCEL SERVICE AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0912-02-2 PER CURIAM
AUGUST 27, 2002
MELINDA B. JONES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Patricia C. Arrighi; Taylor & Walker, P.C.,
on brief), for appellants.
(Craig B. Davis; Emroch & Kilduff, LLP, on
brief), for appellee.
United Parcel Service and its insurer (hereinafter referred
to as "employer") contend the Workers' Compensation Commission
erred in finding that (1) employer failed to prove that Melinda
B. Jones (claimant) was released to return to her pre-injury
work as of December 12, 2000 and that any further disability was
not causally related to her compensable November 10, 1999 injury
by accident, and (2) claimant proved that the medical treatment
and disability resulting from her low back condition were
causally related to her compensable November 10, 1999 injury by
accident. Upon reviewing the record and the parties' briefs, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Moreover, "[q]uestions 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).
As the commission noted, "the medical evidence in this case
is conflicting." The independent medical examiner, Dr. Walter
Rabhan, who examined claimant on one occasion on December 12,
2000, opined that claimant's back complaints were not related to
the November 10, 1999 compensable injury by accident, on the
ground that the medical records did not reflect any back
complaints until eight months after the accident. Dr. Rabhan
also indicated that his examination of claimant's back was
normal and that he believed claimant's MRI was within normal
limits. Dr. Rabhan opined that claimant had reached maximum
medical improvement with respect to her left knee injury and
that she could return to full work without restrictions.
Dr. Kenneth R. Zaslav, claimant's treating orthopedic
surgeon, who reviewed Dr. Rabhan's evaluation, opined, within a
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reasonable degree of medical probability, that at the time of
the November 10, 1999 accident, along with claimant's ACL
injury, she sustained an L4 disc protrusion which caused her L4
radiculopathy. Dr. Steven Fiore, Dr. Zaslav's colleague, who
treated claimant on four occasions, opined that the November 10,
1999 accident was "the cause, or one of the causes" of the
claimant's lower back injury, for which he rendered treatment.
Dr. Fiore opined that claimant sustained an L4-5, foramenal disc
herniation or bulge.
"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). Moreover, "'when 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, 339 S.E.2d 570, 572 (1986)
(citations omitted).
As fact finder, the commission weighed the medical
evidence, accepted the opinions of the treating physicians,
Drs. Fiore and Zaslav, and rejected the contrary opinion of
Dr. Rabhan. The commission articulated its reasons for
rejecting Dr. Rabhan's opinion. The opinions of Drs. Fiore and
Zaslav constitute credible evidence to support the commission's
findings that the medical treatment and disability resulting
from claimant's low back condition were causally related to her
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November 10, 1999 compensable injury by accident and that she
had not been released to perform her pre-injury work. Thus, we
are bound by those findings, and we will not disturb them on
appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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