COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
JOHN W. DANIEL AND COMPANY, INC. AND
WCAMC CONTRACTORS GROUP
SELF-INSURANCE ASSOCIATION
MEMORANDUM OPINION*
v. Record No. 0412-00-3 PER CURIAM
AUGUST 22, 2000
JOSEPH E. DENT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Paul C. Kuhnel; Wooten & Hart, P.C., on
brief), for appellants.
No brief for appellee.
John W. Daniel and Company, Inc. and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission erred in denying its
change-in-condition application by finding that employer failed
to prove that Joseph Dent's (claimant) continuing disability
after September 21, 1998 was not related to his compensable
March 19, 1997 back injury. Upon reviewing the record and the
brief of the employer, 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, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"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 denying employer's application, the commission found as
follows:
Dr. [Lawrence F.] Cohen has been
treating the claimant for a back condition.
None of his reports opine that the back has
healed or that the current symptoms were
caused exclusively by the stumble in
September 1998 or the exacerbation in
November 1998. Instead, the medical record
merely reflects that the claimant's symptoms
had diminished and that he was capable of
returning to light duty. For example, on
March 9, 1998, he reported minimal pain and
occasional symptomatology. At that time,
the claimant was released to light work with
restrictions. . . . By August 26, 1998,
. . . Dr. Cohen proposed light duty for an
additional six months.
Significantly, Dr. Cohen repeatedly
labeled the claimant's problems as an
exacerbation without opining that the
underlying injury had resolved. For
example, on September 24, 1998, he noted
painful lumbar spine range of motion
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radiating into the right lower leg. Dr.
Cohen thought a scan should be taken "to see
if he has a herniated disc at L4-5 on the rt
side which is possible since it is in the
nature of his injury. . . ." He did not
distinguish to which injury this
referred. . . . [Dr. Cohen] advised on
December 31, 1998, that although the
claimant "was doing relatively well . . ."
after the fusion, he "still [was] having
some symptoms. . . ." Moreover, Dr. Cohen
testified that something triggered the right
leg pain, which could have been a nerve root
or referred pain from the L5-S1 level.
. . . [T]he medical record does not indicate
that claimant would have been released to
full duty, except for the two incidents.
Instead, it shows that he was capable of
light duty. Dr. Cohen never stated that the
claimant was completely healed or able to
return to his preinjury employment.
Further, he testified that he could not
state whether the current symptoms were
caused entirely by the two incidents.
The commission's findings are supported by Dr. Cohen's
medical records and his deposition testimony. Based upon that
evidence, the commission, as fact finder, could reasonably
conclude that "[t]he evidence fails to show that the claimant's
condition is not related to the compensable injury." "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).
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Based upon this record, we cannot find as a matter of law
that employer's evidence sustained its burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
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