COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
RAPPAHANNOCK WIRE COMPANY AND
ARGONAUT INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1308-01-2 PER CURIAM
OCTOBER 2, 2001
VINCENT WILL SCHMITT, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark D. Crawford; Friedlander, Misler,
Sloan, Kletzkin & Ochsman, PLLC, on briefs),
for appellants.
(Wesley G. Marshall, on brief), for appellee.
Rappahannock Wire Company and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Vincent Will
Schmitt, Jr. (claimant) proved that he is permanently and
totally disabled within the meaning of Code § 65.2-503(C)(3).
Upon reviewing the record and the parties' briefs, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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).
In ruling that claimant met his burden under Code
§ 65.2-503(C)(3) of proving that he had sustained an injury to
the brain which was so severe as to render him permanently
unemployable in gainful employment, the commission found as
follows:
The claimant's treating physicians and
various examiners have concluded that the
claimant is permanently unemployable due to
his head injury sustained in his 1991 work
accident. Having treated the claimant for
numerous years, they are the most familiar
with his circumstances, work history, and
condition. A careful review of the medical
records reveals that the doctors who
rendered opinions in the case were well
aware of the claimant's attempts to return
to work. The claimant's treating
physicians, including Drs. [Nathan D.]
Zasler and [Roy W.] Jarnecke, concluded that
he is permanently disabled because of his
September 1991 accident and that he is not
gainfully employable. The vocational
rehabilitation expert, Dr. [Larry L.]
Sinsabaugh, opined that the claimant was not
employable as did Dr. [V. Robert] May and
Dr. [Edward A.] Peck[, III]. Only
Dr. [Brian] Schulman, who agreed the
claimant had an organic brain dysfunction
and only examined him once, and Patricia
Eisen, a vocational rehabilitation
counselor, found that the claimant could
engage in gainful employment.
"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
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S.E.2d 213, 215 (1991). The medical records and opinions of
Drs. Zasler, Jarnecke, Sinsabaugh, May, and Peck constitute
credible evidence to support the commission's findings. As fact
finder, the commission weighed the totality of the medical
evidence and accepted the opinions of claimant's treating
physicians, examiners, and vocational rehabilitation counselor,
while rejecting the contrary opinions of Dr. Schulman and
vocational rehabilitation counselor Eisen. "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, "[i]n 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 witnesses." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
We find no merit in employer's argument that the commission
erred in giving greater probative weight to the opinions of
claimant's treating physicians, examiners, and vocational
rehabilitation counselor, because they did not take into account
claimant's returns to work from May 1992 through December 1992
and from February 1993 through June 1993. The commission fully
considered this argument and rejected it. The record supports
the commission's findings. Furthermore, it was undisputed that
from 1994 to the present, claimant remained unemployed.
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Claimant's request for an award of costs and attorneys'
fees is denied. For the reasons stated, we affirm the
commission's decision.
Affirmed.
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