COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
TECNICO CORPORATION AND
LEGION INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0466-00-1 PER CURIAM
JULY 18, 2000
DAVID J. ZIMMER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(R. John Barrett; Kelly O. Stokes;
Vandeventer Black, LLP, on briefs), for
appellants.
(Robert E. Walsh; Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellee.
Tecnico Corporation and its insurer (hereinafter referred
to as "employer") contend that the Workers' Compensation
Commission erred in finding 1) that David J. Zimmer ("claimant")
proved that he was entitled to temporary total disability
benefits from January 22, 1996 through August 18, 1997 and from
January 4, 1999 and continuing, and 2) that he did not fail to
market his remaining work capacity after December 4, 1995. 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, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
January 22, 1996 through August 18, 1997 Disability
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).
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 finding that claimant proved he was totally disabled
beginning January 22, 1996 through August 18, 1997, the
commission accepted the opinions of Dr. Donald Leo Mingione, a
psychiatrist, who treated claimant from February 8, 1996 through
August 18, 1997. Dr. Mingione opined in his deposition
testimony that claimant had been totally disabled during Dr.
Mingione's treatment. In so ruling, the commission found as
follows:
Dr. Mingione is a psychiatrist
specializing in pain management. Based upon
this expertise, we conclude that Dr.
Mingione was in a better position to assess
the effects of the claimant's pain upon his
ability to work. We, like the deputy
commissioner, have carefully considered the
apparent conflicts between some of Dr.
Mingione's treatment notes and his
deposition testimony. We have similarly
considered Dr. [J. Abbott] Byrd's and Dr.
[Edward] Walko's contrary opinions of the
claimant's work capacity. We have also
considered Dr. [Lewis] Taylor's opinion to
the effect that the claimant's psychological
problems are insufficient to prevent the
claimant from working. . . . We conclude
that Dr. Mingione's deposition testimony is
persuasive.
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. . . [Moreover,] the medical evidence
as a whole reveals no substantial change in
the claimant's condition during [the] short
time [from January 22, 1996 until February
8, 1996] preceding Dr. Mingione's first
treatment. Accordingly, we conclude that
the deputy commissioner was warranted in
finding total disability beginning January
22, 1996. Additionally, this time period
would have been too brief to expect the
claimant to demonstrate his inability to
market any residual work capacity.
The commission articulated appropriate justification for
accepting Dr. Mingione's opinion and for rejecting the contrary
opinions of Drs. Taylor, Walko, and Byrd. Dr. Mingione's
opinions provide credible evidence to support the commission's
decision. "The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
We also affirm the commission's conclusion that claimant
did not fail to market his remaining work capacity after
December 4, 1995, because the period of time from that date
until January 22, 1996, when his total disability began, was too
brief for claimant to demonstrate such failure.
Post-January 4, 1999 Disability
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
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In finding that claimant proved that his total disability
beginning January 4, 1999, was, at least in part, caused by
claimant's compensable April 13, 1995 injury by accident, the
commission accepted the opinion of Dr. Walko. In concluding
that claimant's L4-5 disc problem was causally related to his
compensable injury, Dr. Walko opined that "had [claimant] not
had this back injury with all this back pain and all this
impairment and all this pain that he's been having for years
from the 1995 - 1995 injury that this L4-5 disc would not have
deteriorated and broken down."
Dr. Walko's opinion constitutes credible evidence to
support the commission's finding. As fact finder, the
commission was entitled to accept Dr. Walko's opinion and to
reject the contrary opinion of Dr. Byrd, who opined that the new
disc defect at L4-5 was not causally related to the compensable
work injury. "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).
For these reasons, we affirm the commission's decision.
Affirmed.
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