COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY
MEMORANDUM OPINION * BY
JUDGE ROBERT J. HUMPHREYS
v. Record No. 2914-00-1 JUNE 26, 2001
ROBERT E. TOWNSEND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christopher R. Hedrick (Lexine D. Walker;
Mason, Cowardin & Mason, P.C., on brief), for
appellant.
Robert J. Macbeth, Jr. (Rutter, Walsh, Mills
& Rutter, L.L.P., on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company ("employer")
appeals a decision of the Virginia Workers' Compensation
Commission, awarding Robert E. Townsend permanent partial
disability benefits based upon a 17% permanent partial
impairment rating, and denying the employer's application for
credit against future compensation for the overpayment of
benefits paid to Townsend. Because this opinion has no
precedential value and because the parties are fully conversant
with the facts, we do not recite them in detail here.
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Townsend injured his right knee on December 9, 1997, when
he jumped off of a platform at his worksite with the employer.
On June 5, 1998, Dr. Sheldon Cohn advised that Townsend had
reached maximum medical improvement and issued permanent work
restrictions. The employer was unable to offer Townsend a
position within his restrictions.
The employer sent a letter to Dr. Cohn on June 8, 1998,
requesting a clarification of the relation between Townsend's
"present injury" and a prior right knee injury he had suffered
in 1989. Dr. Cohn responded that Townsend suffered from a 17%
permanent impairment rating of his right leg. Dr. Cohn opined
that Townsend's condition and work restrictions were related to
the 1989 injury and attributed 10% of the impairment rating to
the 1989 injury, and 7% to the 1997 injury.
On August 14, 1999, by letter, Dr. Cohn elaborated on his
opinion, stating:
With this in mind, it appears that Mr.
Townsend has developed, over time, a
degenerative problem which is patellofemoral
arthrosis. I believe that is the major
cause of his knee problems at this time. I
do not believe that this history changes his
impairment, however, I do believe that the
injury which he had on 12/9/97 exacerbated
his pre-existing patellofemoral arthritis to
the point where he is unable to work at his
usual job. I do feel that his permanent
work restrictions are due to his most recent
work injury.
On January 6, 1999, Townsend began employment with a new
employer, earning an average weekly wage of $417.81, and
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received pay for this work while receiving compensation
benefits, until June 28, 1999.
Townsend conceded that the employer was entitled to a
credit against his award for permanent disability for the
benefits paid after January 6, 1999. However, the employer
asserted that it was entitled to a credit against future
compensation for an overpayment of temporary partial benefits
for the period when Townsend was working for another employer
but did not disclose his employment.
The employer's case manager testified that Townsend
forwarded a letter to the employer on February 5, 1999, stating
that he was employed at the Western Regional Jail in Portsmouth.
By way of the letter, Townsend also informed the employer that
he would be earning a salary of $21,000.00. The case manager
stated that she had to call three different jails to verify
Townsend's employment, which was actually with Hampton Roads
Regional Jail in Portsmouth, Virginia. When she contacted the
jail, the supervisor requested a subpoena before releasing
and/or verifying the information the employer needed to file an
application for a credit before the commission. The employer
was ultimately unable to verify the necessary information until
June 18, 1999.
The Deputy Commissioner denied the employer's request to
divide the 17% permanent partial impairment rating between the
1989 injury and the 1997 injury, finding that the evidence
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established Townsend had suffered no residual disability from
his 1989 injury, making the employer responsible for the
aggravation of Townsend's pre-existing condition, and therefore
his entire permanent impairment. The deputy also found that
Townsend provided an accurate and reasonably prompt notification
of his return to employment and his salary as required pursuant
to Code § 65.2-712. The commission affirmed the deputy's
decision.
It is well established that:
factual findings of the [commission] will be
upheld on appeal if supported by credible
evidence. The causal relationship, or lack
thereof, between a disease and employment is
a question of fact. Similarly, the question
[of causation] raised by conflicting expert
medical opinions is one of fact. The
deference that we give to the commission's
fact-finding on medical questions is based
upon the "unwisdom of an attempt by . . .
[courts] uninitiated into the mysteries to
choose between conflicting expert medical
opinions." Consequently, where the
commission resolves the 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.
Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872,
874 (1992) (citation omitted).
Thus, contrary to the employer's assertion, conflicting
medical evidence is not sufficient to warrant the reversal of a
commission decision. See Georgia-Pacific Corp. v. Robinson, 32
Va. App. 1, 5, 526 S.E.2d 267, 268 (2000). The commission gave
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little weight to the opinion of Dr. Cohn attributing 10% of
Townsend's permanent impairment to his 1989 injury and 7% to his
1997 injury, due to Townsend's conflicting medical history which
demonstrated that prior to 1997, Townsend had never been
diagnosed with any permanent impairment, provided with a
permanent impairment rating, nor placed under any permanent work
restrictions. The commission also considered Dr. Cohn's own
conflicting opinions pertaining to the causation of Townsend's
permanent work restrictions. Issues of weight and credibility
are uniquely within the province of the commission, and we will
not substitute our judgment for that of the trier of fact. See
City of Portsmouth Sheriff's Dept. v. Clark, 30 Va. App. 545,
553, 518 S.E.2d 342, 346 (1999); see also Dollar General Store
v. Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).
With regard to the employer's request for a credit for an
overpayment of benefits paid to Townsend, Code § 65.2-712
clearly requires that an employee receiving compensation
immediately:
disclose to the employer, when the employer
is self-insured, or insurer in all other
cases, any . . . return to employment, [or]
increase in his earnings . . . . Any
payment . . . later determined . . . to have
been procured by the employee . . . by
fraud, misrepresentation, or failure to
report any . . . return to employment, [or]
increase in earnings . . . may be recovered
from the claimant . . . by the employer. . .
either by way of credit against future
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compensation payments due the claimant
. . ., or by action at law against the
claimant . . . .
However, "[d]isclosure to employer is all that is required under
Code § 65.2-712, and that section does not dictate an exclusive
means by which the employee is to accomplish that disclosure.
The legislature could have required, as it did in Code
§ 65.2-600, that such disclosure be in the form of a written
notice setting forth certain specific information, but it did
not." Washington Metro. Area Transit v. Rogers, 17 Va. App.
657, 660, 440 S.E.2d 142, 145 (1994). In light of this, we find
no error in the commission's application of Code § 65.2-712 as
it pertains to this case and affirm the commission's decision.
Affirmed.
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