COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MILTON EARL OAKLEY
MEMORANDUM OPINION*
v. Record No. 2928-99-3 PER CURIAM
MARCH 28, 2000
YELLOW FREIGHT SYSTEMS, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Milton E. Oakley, pro se, on brief).
(S. Vernon Priddy, III; Sands, Anderson,
Marks & Miller, on brief), for appellee.
Milton E. Oakley contends that the Workers' Compensation
Commission erred in finding that he failed to prove that he
remained disabled after August 11, 1998 as a result of his
compensable January 28, 1998 injury by accident. Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. See Rule 5A:27.
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).
Unless we can say as a matter of law that Oakley's evidence
sustained his burden of proof, the commission's findings are
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
binding and conclusive upon us. See Tomko v. Michael's
Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In affirming the deputy commissioner and ruling that Oakley
failed to prove continuing disability after August 11, 1998, the
commission held as follows:
In a case involving a specialized condition
such as this one, it was proper for the
Deputy Commissioner to consider and give
greater weight to the opinions of the
specialists, Drs. [Steven M.] Koenig and
[Dennis J.] Darcey. They believe [Oakley's]
symptoms were not related to his exposure to
fumes on January 28, 1998. Although it
appears that [Oakley's] family physicians
related [his] condition to his work exposure
and kept him out of work, none of the other
doctors did the same. Even Dr. [J. Gordon]
Burch, upon whose opinion [Oakley] relies,
found that [Oakley] could perform at least
light duty work from January 1999.
Dr. Burch's opinion contained in a
January 26, 1999, letter from [Oakley's]
counsel, relating [Oakley's] condition to
his work injury, is insufficient given his
deposition testimony and other medical
records. It is apparent from Dr. Burch's
medical records that he is unclear as to the
etiology of [Oakley's] symptoms. In his
deposition, Dr. Burch admitted that while he
was "52 to 55 percent confident" that
[Oakley's] disorder was caused by the
chemical exposure, he could not "say with
precision" the mechanism of the injury and
admitted that he was just "theorizing." The
Deputy Commissioner correctly gave this
opinion little weight.
In its role as fact finder, the commission was entitled to
weigh the medical evidence, to accept the opinions of the
specialists, Drs. Koenig and Darcey, and to reject Dr. Burch's
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opinion. "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).
The commission's findings, based upon the opinions of Drs.
Koenig and Darcey, are binding and conclusive upon us. Thus, we
cannot say as a matter of law that Oakley's evidence sustained
his burden of proving disability after August 11, 1998 causally
related to his compensable injury by accident. See Tomko, 210
Va. at 699, 173 S.E.2d at 835.
For these reasons, we affirm the commission's decision.
Affirmed.
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