COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
FLOWERS TRANSPORT, INC. AND
RELIANCE NATIONAL INDEMNITY COMPANY
MEMORANDUM OPINION*
v. Record No. 2267-01-3 PER CURIAM
JANUARY 22, 2002
TERESA L. LAVIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Monica L. Taylor; E. Scott Austin; Gentry
Locke Rakes & Moore, on briefs), for
appellants.
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, P.C., on brief), for appellee.
Flowers Transport, Inc. and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in (1) giving no probative weight to hearsay
information contained in Dr. Robert Brown's medical report and
relied upon in forming his opinions; and (2) finding that Teresa
L. Lavis (claimant) proved that her psychiatric condition
constituted a compensable change in condition causally related
to her compensable May 1, 1998 injury by accident. Upon
reviewing the record and the parties' briefs, we conclude that
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
I.
Employer contends the commission erred in giving no
probative weight to hearsay contained in Dr. Brown's medical
report and relied upon by him in rendering his opinion. We
disagree.
In addressing this issue, the commission found as follows:
Dr. Brown reported a conversation with
[Daryl] Flowers[, claimant's supervisor,]
concerning factors other than the claimant's
injuries that were keeping her out of work.
The claimant objected to this portion of
Dr. Brown's report, and the deputy
commissioner agreed that it was only
marginally probative and would be given
"appropriate evidentiary weight." We
believe this approach was essentially
correct.
Dr. Brown's reporting of the
conversation with Flowers was clearly
outside the boundaries of appropriate
evidence. Although the employer correctly
asserts that hearsay testimony is routinely
admitted at workers' compensation hearings,
Flowers's hearsay testimony was admitted
through the additional hearsay report of
Dr. Brown. The Commission's evidentiary
procedures clearly allow hearsay testimony
from medical providers. Rule 2.2(B)(2). In
this situation, however, Dr. Brown's report
concerned an additional conversation with a
witness. Under these circumstances, we
believe these statements were of no
probative value. The deputy commissioner's
decision, however, was to afford the
statements "appropriate evidentiary value,"
which we believe correctly declined to
afford them any probative value.
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Contrary to employer's contention, the commission did not
refuse to consider Dr. Brown's report. Rather, it recognized
the well-settled rule that it may consider hearsay evidence and
then gave the report and the double-hearsay statements contained
in it the evidentiary weight it deemed appropriate. We find no
abuse of discretion in the commission's findings.
II.
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).
"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)). "The actual determination of causation is a
factual finding that will not be disturbed on appeal if there is
credible evidence to support the finding." Ingersoll-Rand Co.
v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
In ruling that claimant proved that her psychological
condition was causally related to her compensable May 1, 1998
injury by accident, the commission found as follows:
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On March 28, 2000, Dr. Riaz Riaz, a
psychiatrist, examined the claimant at her
counsel's request. Dr. Riaz observed that
the claimant was "depressed, anxious, [and]
nervous" and noted that she was receiving
psychotherapy from Sharon Fleshner.
Dr. Riaz believed that the claimant had
generalized anxiety disorder and major
depression "precipitated by her work related
injury of May 1, 1998." . . .
On September 6, 2000, [Dr.] Fleschner
. . . and Beverley McBride, M.S., authored a
"status update" concerning psychological
treatment provided to the claimant since
December 21, 1998. The report noted that
the claimant had "several" therapy sessions
since that time for "chief complaints of
pain and comorbid depression and anxiety
from the work-related incident occurring on
05/01/98." The report stated that the
claimant was "experiencing a disabling
chronic pain syndrome with reports of
constant pain and a high frequency of pain
behaviors coupled with marked levels of
depression, anxiety, and anger," based on
the Beck Depression and Anxiety Inventories
performed in February and August 2000. . . .
* * * * * * *
The claimant was diagnosed with depression
stemming from the accident as early as May
26, 1998. She also received regular
psychotherapeutic treatment beginning in
December 1998. Dr. Miller clearly
associated the claimant's psychological
problems with the May 1998 accident, and
Dr. Brown's opinion was that the claimant
had a psychological pain disorder.
Dr. [John] Daniel believed that the
claimant's psychological condition,
resulting from the May 1998 accident, was
her "major disabling factor."
The medical records and opinions of Drs. Riaz, Fleshner,
Miller, and Daniel provide credible evidence to support the
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commission's findings. As fact finder, the commission was
entitled to accept the opinions of these physicians, and to
reject Dr. Brown's opinion regarding causation. "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). Moreover, "[t]he fact that
there is contrary evidence in the record is of no consequence if
there is credible evidence to support the commission's finding."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
For these reasons, we affirm the commission's decision.
Affirmed.
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