COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
MOBILE VAC SERVICES COMPANY AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2880-00-1 PER CURIAM
APRIL 17, 2001
MICHAEL LEE FINLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William C. Walker; Taylor & Walker, P.C., on
brief), for appellants.
(John H. Klein; Montagna, Klein & Camden,
L.L.P., on brief), for appellee.
Mobile Vac Services Company and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that Michael Lee Finley's (claimant) ongoing psychological
therapy sessions with Dr. Norbert L. Newfield were either
unreasonable or unnecessary medical treatment for claimant's
compensable October 14, 1993 back injury. Upon reviewing the
record and the briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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).
"General principles of workman's compensation law provide that
'[i]n 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)). Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In finding that employer's evidence failed to sustain its
burden of proof, the commission found as follows:
[W]e recognize that the claimant's
psychological condition has not markedly
improved over the period during which he has
undergone treatment. However, the claimant
and his wife have both credibly described
the ameliorating effect psychotherapy has
had upon his severe and potentially suicidal
depression resulting from his accident. Dr.
Newfield stated that the claimant's
psychological condition and functioning has
waxed and waned, but explained that the use
of psychotherapy has resulted in a
stabilization of his condition. As
explained by the claimant and his wife,
however, this stability has been shaken by
the employer's termination of treatment, and
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the claimant's condition has regressed
without active attention. Dr. [David W.]
Reid, the claimant's treating psychiatrist
and physician administering psychotropic
medication has opined that Dr. Newfield's
therapy is "vitally important" to his care.
We recognize that Dr. [Paul] Mansheim
has offered a contrary opinion, noting that
the claimant's treatment regimen appears
"aimless," and without clear objectives.
However, we also note that Dr. Mansheim did
not address in his report the reasonableness
or necessity of psychological therapy or
counseling as palliative treatment. In this
regard, we find it significant that Dr.
Newfield – with the benefit of over 375
treatment sessions with the claimant -
believes that Dr. Mansheim has grossly
underestimated the effects of the claimant's
severe depression on his overall diagnosis
and upon the claimant's functional
abilities. Dr. Newfield explained that the
claimant's condition has resulted in far
less functional ability than that suggested
by Dr. Mansheim, requiring psychological
counseling and therapy to stabilize a
potentially suicidal depressive condition.
Considering Dr. Newfield and Dr. Reid's
extensive treatment, whose opinions are
accented by the testimony of the claimant
and his wife, we accord Dr. Mansheim's
opinion with less weight.
The opinions of Drs. Newfield and Reid, along with the
testimony of claimant and his wife, amply support the
commission's finding that ongoing psychotherapy with
Dr. Newfield constitutes reasonable and necessary medical
treatment related to claimant's compensable injuries. In its
role as fact finder, the commission was entitled to weigh the
medical evidence. The commission did so and accepted the
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opinions of the treating physicians, Drs. Newfield and Reid,
while rejecting the contrary opinion of Dr. Mansheim, who
performed an independent medical examination of claimant and
reviewed claimant's medical records. "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).
Based upon this record, we cannot find as a matter of law
that employer sustained its burden of proving that ongoing
psychological treatment was not necessary and reasonable medical
treatment for claimant's compensable injuries.
For these reasons, we affirm the commission's decision.
Affirmed.
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