COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
DAVID BIRMINGHAM, JR.
MEMORANDUM OPINION * BY
v. Record No. 0039-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 15, 2002
CENTURY CONCRETE, INC. AND
PENNSYLVANIA MANUFACTURER'S
INDEMNITY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
David R. Birmingham, Jr., pro se.
Jennifer G. Tatum (Clarke, Dolph, Rapaport,
Hardy & Hull, P.L.C., on brief), for
appellees.
David Birmingham, Jr. (claimant), contends the Workers'
Compensation Commission (commission) erred in its finding that
(1) his neck injury was not related to his February 26, 1997
compensable work injury and (2) there is no ongoing disability
related to his compensable hand and wrist injuries sustained
February 26, 1997. 1 Finding no error, we affirm the commission's
decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Claimant also contends he should be reimbursed for his
mileage. This issue is barred under Rule 5A:18. It was not
raised before the commission or addressed in any opinion and,
thus, was not preserved for appeal.
I. FACTS
We view the evidence in the light most favorable to the
employer, who prevailed below. See Westmoreland Coal v. Russell,
31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). The commission's
factual findings are conclusive and binding on this Court when
those findings are based on credible evidence. See James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989); Code § 65.2-706. "The fact that there is contrary
evidence in the record is of no consequence." Wagner Enters.,
Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
So viewed, claimant, a carpenter, sustained compensable
injuries to his wrists and hands, chest, and face when he fell
from a ladder on February 26, 1997. Employer accepted the claim,
and benefits were paid accordingly. Claimant treated with
Dr. Robert J. Snyder for his hand injuries. Dr. Snyder performed
two carpal tunnel releases. Claimant was eventually released to
return to light duty work. He was later fired by employer for a
violation of the company drug policy, and his indemnity benefits
were terminated. He moved to New York and failed to follow up
with Dr. Snyder.
Claimant sought medical treatment in New York with Dr. R.J.
Mutty in January 1998 for his hand injuries. Dr. Mutty referred
claimant for testing and then to a hand surgeon, Dr. Jon B.
Loftus. Dr. Loftus stated "with regard to the pain, I don't
really know what is causing it without any other objective
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evidence and pathology." He referred claimant to a pain clinic.
In August 1998, the pain clinic referred claimant to Dr. Arnold
A. Criscitiello for evaluation of complaints of neck pain. In
September 1998, claimant was involved in a serious motor vehicle
accident in which the vehicle rolled over and the driver was
killed. Claimant arrived at the emergency room complaining of
head and neck pain. Also in September 1998, claimant agreed to a
settlement of a prior workers' compensation claim with a previous
employer, waiving his right to future medical benefits for a neck
injury that required surgery.
Claimant then began treating with Dr. Criscitiello,
Dr. James W. Holsapple, and Dr. Warren T. Rinehart for his neck
pain. Claimant gave a history to each of these physicians that
he had been injured and required C5-6 fusion in 1989, had been
involved in a motor vehicle accident in December 1993 in which he
fractured C3 and required a fusion at C6-7, underwent bilateral
carpal tunnel releases as a result of the February 1997 injury,
and, in September 1998, had been involved in the motor vehicle
accident. Claimant also reported his neck pain began after the
February 1997 injury. X-rays taken after the February 1997
injury show a non-union at the C6-7 fusion and degenerative
changes. A CT scan after the serious September 1998 motor
vehicle accident shows a new herniation at C4-5.
In May 1999, Dr. Snyder, his prior treating orthopedic
physician, reviewed the available medical information at the
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request of the employer and opined regarding claimant's neck
injury, "I can in no clear terms state that the patient's present
condition is at all related to his injury."
Claimant filed applications December 11, 1998 and June 1,
1999 alleging his neck injury was a result of the February 26,
1997 compensable accident and a change in condition of his hand
injuries. The deputy commissioner found the opinion of
Dr. Snyder "to be the most persuasive and most consistent with
reason and justice" and held claimant failed to prove (1) his
neck injury was a result of the February 26, 1997 accident and
(2) he had ongoing disability related to his hand injuries. The
deputy commissioner specifically addressed claimant's credibility
in his opinion.
The Commission had the opportunity to view
the demeanor of the claimant and does not
find his testimony to be candid or credible.
He is an admitted felon, and we are deeply
concerned about his use and abuse of
prescription drugs and marijuana. His
employer warned him to refrain from drug
usage and when he did not, that was the
reason for his termination for cause. He had
been involved in numerous industrial and
automobile accidents. He had numerous
financial settlements for prior injuries,
including a settlement where he waived all
benefits for a neck problem, similar to the
present claim. In addition, he did not begin
to pursue the alleged neck problems from this
accident until after the settlement of his
prior neck claim and after his initial claim
for benefits in this case had been rejected
by the Full Commission and the Court of
Appeals.
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Claimant appealed the decision to the full commission. The
commission held that claimant's neck injury was not a result of
the February 26, 1997 accident and any disability resulting from
that injury was not compensable and that he failed to prove he
had any ongoing disability related to his hand and wrist
injuries.
The commission also cited the deputy commissioner's finding
regarding the claimant's credibility.
We recognize that the claimant has testified
that he regularly told all of his physicians
about this neck pain and problems following
the accident. It is apparent that the
claimant mentioned to at least two of his
physicians, at some point in time, that his
neck was bothering him. However, none of his
physicians found these complaints significant
enough to memorialize until nearly a year and
a half after the accident. The Deputy
Commissioner questioned the veracity of the
claimant's testimony, citing his own
observation of the claimant's demeanor at the
hearing, his felony conviction and history of
drug abuse, as well as claimant's prior
settlement of a similar neck injury claim
whereby he waived medical benefits. We find
no fault in these findings.
The claimant appealed from that decision.
II. SUFFICIENCY OF THE EVIDENCE
We view the evidence in the light most favorable to the
party prevailing below in determining whether credible evidence
exists to support the necessary factual findings. Crisp v.
Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339
S.E.2d 916, 916 (1986). On appeal, factual findings of the
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commission will not be disturbed if based on credible evidence.
Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276,
279, 348 S.E.2d 876, 877 (1986).
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991). "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).
"In determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of the
witnessess." Wagner Enters., Inc. v. Brooks, 12 Va. App. 809,
894, 407 S.E.2d 32, 35 (1991).
"'The probative weight to be accorded [medical] evidence is
for the Commission to decide; and if it is in conflict with other
medical evidence, the Commission is free to adopt that view
"which is most consistent with reason and justice."'"
Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d
267, 269 (2000) (quoting C.D.S. Services v. Petrock, 218 Va.
1064, 1070, 243 S.E.2d 236, 241 (1978)).
In the instant case, credible evidence supports the
commission's decision that claimant failed to prove (1) his neck
injury was a result of the February 26, 1997 compensable work
injury and (2) he had ongoing disability as a result of his
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compensable hand and wrist injuries. The commission determined
Dr. Snyder's report to be the most persuasive. In reviewing the
evidence, the commission found
[t]he medical opinions in the record do not
support the claimant's position. Dr. Snyder,
who was the claimant's primary physician for
approximately ten months following the
accident, could not causally relate the neck
injury to the accident. Dr. Loftus - - who
treated him for his hand and wrist pain - -
did not offer an opinion about the cause of
the claimant's neck pain. Although Dr. Nebab
was consulted for pain management, he failed
to record any complaint of neck pain by the
claimant, and did not offer any opinion as to
its cause. While not specifically offering
an opinion as to the cause of the claimant's
neck pain, Dr. Holsapple noted the claimant's
report that his neck symptoms had worsened
after the automobile accident in September of
1998.
Only Drs. Criscitiello and Rinehart
suggested that the claimant's neck problems
were related to the compensable accident. We
find, however, that the opinions of these
doctors are not entitled to significant
weight because they were either misinformed
or uninformed about crucial facts.
In addressing claimant's ongoing hand disability, the
commission stated
[t]he only physician offering a specific
opinion causally relating the claimant's
ongoing hand and wrist pain to the
compensable accident was Dr. Rinehart. He
offered the conclusory opinion that the
claimant's bilateral hand pain was caused by
the accident in the context of a one-time,
independent medical evaluation at the
claimant's behest for purposes of unrelated
litigation. . . . [T]he information Dr.
Rinehart relied upon in rendering his opinion
was not entirely accurate.
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The commission's finding, that the medical evidence does not
support the claimant's position and that he lacked credibility,
is clearly supported by the evidence. We hold there is ample
credible evidence to support the commission's decision.
For the foregoing reasons, the decision of the commission is
affirmed.
Affirmed.
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