COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Coleman
JOHN CHARLES HARRIGER
MEMORANDUM OPINION*
v. Record No. 0290-00-3 PER CURIAM
JUNE 6, 2000
PEPSI-COLA GENERAL BOTTLERS/
WHITMAN CORPORATION AND
BIRMINGHAM FIRE INSURANCE COMPANY
OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John Charles Harriger, pro se, on brief).
(Ramesh Murthy; Lisa Frisina Clement; Penn,
Stuart & Eskridge, on brief), for appellees.
John Charles Harriger contends that the Workers'
Compensation Commission erred in denying his application
alleging a change-in-condition in his June 5, 1994 injury by
accident. 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
change in condition, the burden is on the party alleging such
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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)). The commission's findings are binding and conclusive
upon us when they are supported by credible evidence. See Code
§ 65.2-706; Falls Church Constr. Co. v. Laidler, 254 Va. 474,
478-79, 493 S.E.2d 521, 524 (1997).
The medical records established that on December 4, 1998,
Dr. Jeffrey R. McConnell, an orthopedic surgeon, opined that
there had been no objective change in Harriger's back condition
over the time he had treated Harriger. As we recognized in this
Court's April 14, 1998 opinion, see Harriger v. Pepsi-Cola
General Bottlers/Whitman Corp., Record No. 2806-97-3, Dr.
McConnell had previously released Harriger to return to his
pre-injury work without restrictions on December 19, 1996. Dr.
McConnell opined that Harriger's condition had deteriorated due
to psychological dysfunction, and Dr. McConnell clarified that
he had not changed any of the recommendations for Harriger's
return to work status with respect to his physical condition.
On April 7, 1999, Dr. Paul R. Kelley, a neuropsychiatrist,
opined that Harriger chose not to work and that his mental
status did not support this inability. Dr. Kelley did not find
that Harriger suffered from any psychiatric disorder, but rather
that his behavior was consistent with malingering.
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In denying Harriger's application, the commission accepted
the opinions of Drs. McConnell and Kelley and rejected the
contrary opinions of Drs. Neil P. Dubner, a psychiatrist, and
Robert Van Clampitt, a family practitioner. "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). The commission articulated
credible reasons for giving little probative weight to the
opinions of Drs. Dubner and Clampitt. "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).
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that as of October 23, 1998, Harriger was totally
disabled from work due to a condition causally related to his
compensable injury by accident. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Accordingly, we affirm the commission's decision.
Affirmed.
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