COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued by teleconference
BETTY B. COAL COMPANY, INC. AND
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH
MEMORANDUM OPINION * BY
v. Record No. 0614-01-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 13, 2001
JERRY RUSSELL DOTSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy III (Sands, Anderson,
Marks & Miller, on brief), for appellants.
D. Allison Mullins (Lee & Phipps, P.C., on
brief), for appellee.
Betty B. Coal Company, Inc. and its insurer, National Union
Fire Insurance Company of Pittsburgh ("employer"), appeal a
decision of the Workers' Compensation Commission denying their
application to terminate an ongoing award of temporary total
disability benefits to Jerry Russell Dotson. For the reasons
that follow, we affirm the decision of the commission.
Because this decision has no precedential value, we recite
only those facts pertinent to our holding. Dotson, a scoop
operator for employer, was injured on September 17, 1998 when he
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
slipped and fell while cleaning debris out of the bucket of the
scoop he had been operating.
Following a medical examination performed by Dr. Kevin
Blackwell, Dotson was diagnosed as suffering from a right elbow
contusion, as well as right shoulder strain, and placed on
restricted work status.
Dotson continued to experience shoulder pain and received
treatment for this problem through November of 1998. At that
time, Dr. Blackwell referred Dotson to Dr. John M. Chandler, an
orthopedist.
On November 23, 1998, Dr. Chandler diagnosed Dotson with
"cervical spondylosis, symptomatic with mild to moderate rotator
cuff impingement, right worse than left." As to Dotson's
shoulder injury, Dr. Chandler recommended, "[w]ith respect to
the shoulder, [Dotson] simply needs to continue working on
restricted duty."
Dotson saw Dr. Chandler once again on January 14, 1999. He
advised Dotson to undergo EMGs and nerve conduction studies, and
referred him to "Dr. McConnell," a spine surgeon. He further
recommended that Dotson continue to perform only light duty
work. On June 3, 1999, in response to a letter of inquiry from
employer's counsel, Dr. Chandler wrote:
Received your letter of June 1, 1999. I can
say with certainty that Mr. Dotson would
have needed to be on light duty from the
period I saw him January 14, 1999 until a
period that he could see Dr. McConnell.
- 2 -
That appointment was made January 25, 1999 I
believe. Beyond that I cannot make any
inferences as to whether or not his work
status would have changed. It is not
appropriate for me to review records and try
to make that determination. . . .
Dotson returned to Dr. Blackwell for treatment on October
14, 1999. Dr. Blackwell indicated in his handwritten treatment
notes that the visit was a "FU for Rt. Shoulder Strain." He
noted "R. shoulder pain," but wrote "normal exam." Under the
heading "Disposition," Dr. Blackwell indicated Dotson "[m]ay
return to work without restrictions on 10/14/99." However,
underneath this notation, Dr. Blackwell noted that an orthopedic
referral was pending.
On December 10, 1999, Dr. Chandler examined Dotson once
again, and noted:
My recommendation at this time would be to
allow this man to rehabilitate his upper
extremities. I do not think that the
Cortisone injections in his shoulder are
likely to relieve his pain except
temporarily, and the risk of long term
damage to the articular surface and
otherwise normal shoulder is probably
weighed against a more appropriate therapy
which would be to place him in a therapy
program. Certainly, we would be happy to
review any records that needed to be
reviewed, though from a pure orthopedic
standpoint at this time, I believe that his
persistent problems are probably related to
his C6 radiculopathy and incomplete recovery
of that. It is my opinion that a Cortisone
injection would not appreciably improve his
symptoms in the long term at this time.
- 3 -
Dotson filed his initial claim for temporary total
disability benefits on December 11, 1998. Both Dotson and
employer stipulated that his elbow and shoulder injuries were
causally related to the accident. By opinion dated August 18,
1999, the deputy commissioner awarded Dotson temporary total
disability benefits for his right elbow and shoulder beginning
January 29, 1999 and continuing. Employer sought a review by
the full commission. The full commission affirmed the deputy's
decision on May 5, 2000. See Jerry Russell Dotson v. Betty B
Coal Co., Inc., VWC File No. 193-33-27 (May 5, 2000).
During the pendency of the above proceedings, employer
filed a separate application for hearing on December 1, 1999,
requesting termination of Dotson's award of temporary total
disability benefits. Specifically, employer alleged in its
application that Dotson "was released to return to pre-injury
work on October 14, 1999 per Dr. Blackwell's report dated
October 14, 1999." Employer attached Dr. Blackwell's
handwritten treatment notes from October 14, 1999 to its
application for hearing.
The deputy commissioner decided the application on the
record, finding that employer failed to raise the issue of
whether any disability still remaining was unrelated to the
compensable injury and that employer failed to establish that
Dotson was capable of returning to his pre-injury work as there
was no evidence that Dr. Chandler, Dotson's orthopedist, lifted
- 4 -
Dotson's work restrictions. The full commission affirmed, with
one dissent. On appeal, employer relies on Dr. Blackwell's
October 14, 1999 handwritten treatment notes in contending that
the commission erred in finding it failed to establish that
Dotson was released to return to pre-injury work.
Guided by well established principles,
we construe the evidence in the light most
favorable to the party prevailing below,
claimant in this instance. "If there is
evidence, or reasonable inferences can be
drawn from the evidence, to support the
Commission's findings, they will not be
disturbed on review, even though there is
evidence in the record to support a contrary
finding."
Russell Stover Candies v. Alexander, 30 Va. App. 812, 825, 520
S.E.2d 404, 411 (1999) (quoting Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)).
Consequently, where the commission
resolves [a] conflict in medical testimony,
on appeal the medical issue will not be
"settled by judicial fiat," and the
commission's decision is binding so long as
it is supported by credible evidence. When,
however, there is no conflict in the
evidence or where there is no credible
evidence to support the commission's factual
findings, the question is the sufficiency of
the evidence, which is a question of law.
Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872,
874 (1992) (quoting Johnson v. Capitol Hotel, 189 Va. 585, 590,
54 S.E.2d 106, 109 (1949)).
Employer contends that here, the evidence is "undisputed."
Thus, employer argues that the question is one of sufficiency of
- 5 -
the evidence, a question of law suitable for our review on
appeal. We disagree.
First, employer misstates the standard of review. It is
not a question of whether the evidence is "in dispute."
Instead, the issue on review is whether there is a "conflict in
the evidence" itself. See id. If no such conflict exists, the
question becomes one of sufficiency, a question of law to be
determined by this Court on appeal.
In the present case there is a distinct conflict between
the medical opinion of Dr. Chandler, as opposed to that of Dr.
Blackwell. Thus, the issue is a question of fact, not an issue
of law. See Russell Stover Candies, 30 Va. App. at 826, 520
S.E.2d at 411 ("'[a] question raised by conflicting medical
opinion is a question of fact'" (quoting Commonwealth v. Powell,
2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986))).
"It is firmly established that a finding by the
[c]ommission as to questions of fact, if supported by credible
evidence, is conclusive and binding upon us. Moreover, this
rule also applies to facts found from conflicting expert
opinions." Chandler v. Schmidt Baking Co., 228 Va. 265, 267-68,
321 S.E.2d 296, 297 (1984).
Here, the credible evidence demonstrated that Dr. Blackwell
first placed Dotson on work restrictions on September 21, 1998.
On November 23, 1998, Dr. Chandler agreed with the
recommendation of restrictions to light duty. Although
- 6 -
Dr. Blackwell lifted the work restrictions he had placed on
Dotson on October 14, 1999, the commission found it relevant
that he noted in doing so that an orthopedic referral was still
pending. On December 10, 1999, when Dotson saw Dr. Chandler,
his orthopedist, Dr. Chandler advised him to continue physical
therapy for his shoulder. Further, Dr. Chandler did not lift
the work restrictions he had imposed during both the prior year
and in early 1999. Thus, the commission resolved this conflict
in the physicians' opinions in Dotson's favor, as it had the
right to do.
Although employer correctly points out that in response to
its inquiry, Dr. Chandler stated on June 3, 1999 that he could
not assert an opinion at that time as to Dotson's ability to
return to pre-injury work, employer neglects to recognize that
Dr. Chandler made this statement in reference to its request
that he make this determination based upon a mere review of
Dotson's medical records. Dr. Chandler declined to opine as to
Dotson's status based upon the records alone. However, when he
physically examined and treated Dotson on December 10, 1999, he
made no attempt to remove the restrictions he had imposed
several months earlier. Thus, we find that the credible
evidence supports the commission's finding of fact in this
regard.
We do not address employer's argument, suggested in a
footnote in its brief, that the commission erred in finding
- 7 -
employer had failed to properly raise the question of whether
Dotson's continued inability to work related only to his neck
injury. Employer raised this argument only by stating that it
reserved the right to assert the argument "should Dotson argue
that the Full Commission also agreed with the deputy
commissioner's" finding in this regard. Dotson raised no such
argument. Therefore, we find that the issue is not properly
before this Court for our consideration.
Accordingly, we affirm the decision of the commission.
Affirmed.
- 8 -