COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
PARAMONT COAL CORPORATION AND
PYXIS RESOURCE COMPANY
MEMORANDUM OPINION**
v. Record No. 2340-00-3 PER CURIAM
JANUARY 23, 2001
FREDDIE PAUL MULLINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael F. Blair; Lisa Frisina Clement; Penn
Stuart & Eskridge, on brief), for appellants.
(Paul L. Phipps; Lee & Phipps, P.C., on
brief), for appellee.
Paramont Coal Corporation and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in denying its application
alleging a change in Freddie Paul Mullins' condition. 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.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
* Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 denying employer's application, the commission found as
follows:
There is a conflict in opinions between Dr.
[Jim C.] Brasfield, the neurosurgeon who
performed a laminectomy, and Dr. [Gary S.]
Williams, the treating internist. Dr.
Brasfield first issued a full duty release
at the claimant's request in June of 1998,
prior to the earlier Commission decision
awarding continuing benefits. Since then
Dr. Brasfield has seen the claimant five
times, each time reiterating his full
release. Dr. Brasfield minimized the
claimant's discomfort following his return
to work. Dr. Brasfield also erroneously
stated that the claimant was continuing to
work and was on no medication. He concluded
that absent a neurological deficit, no
restrictions were in order.
By contrast, by June of 1998, Dr.
Williams saw the claimant eighteen times.
He prescribed medications, including
Percocet and Prozac, of which Dr. Brasfield
was unaware. He excused the claimant from
work, although Dr. Brasfield was under the
impression that the claimant was still
working. Dr. Williams documented chronic,
intractable back pain ever since the
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claimant attempted to work as a heavy
equipment operator four months after back
surgery. Dr. Brasfield dismissed these
complaints essentially because there were no
surgical lesions. We find that Dr.
Williams' opinions are more persuasive than
Dr. Brasfield's opinions because he was more
familiar with the claimant and his concerns
extended beyond the narrow neurological
assessment.
Dr. Williams' opinions support the commission's findings.
In its role as fact finder, the commission weighed the medical
evidence and accepted the opinions of Dr. Williams, while
rejecting the contrary opinions of Dr. Brasfield. "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 S.E.2d 213, 215
(1991). Moreover, "[q]uestions 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 light of Dr. Williams' opinions, we cannot find as a matter
of law that employer sustained its burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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