COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY
MEMORANDUM OPINION*
v. Record No. 2337-99-4 PER CURIAM
FEBRUARY 8, 2000
BRENDA L. COOPER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert C. Baker, Jr.; Mell, Brownell &
Baker, on brief), for appellant.
(Julie H. Heiden; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellee.
Washington Metropolitan Area Transit Authority (employer)
contends that the Workers' Compensation Commission (commission)
erred in finding that it failed to prove that Brenda L. Cooper
(claimant) was able to return to her pre-injury work as of
September 30, 1998. 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)). 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 change-in-condition application, the
commission found as follows:
Although Dr. [Laura] Isensee agreed that
most of [claimant's] complaints are
subjective, she stated that she had found a
decreased range of motion in the neck and
shoulders, and has found the claimant to be
tender to palpation over the cervical spine.
She stated that on one occasion she observed
an oblong area in the left mid to lower back
region which "did not feel like a lipoma to
me, but more like, what I describe, as
'bunched-up' muscle."
Dr. Isensee acknowledged that the
claimant's pain complaint is what prevented
her from being able to return to her
pre-injury work as a bus driver. Although
Dr. Isensee admitted that she relied upon
the claimant's statements as to what she
could or could not do, Dr. Isensee opined
that the claimant's complaints are real,
based upon Dr. Isensee's own observations
regarding the pain. Dr. Isensee stated that
she did not rely only upon the claimant's
statements in deciding work capacity, but
based that assessment on her own
observations from having taken care of the
claimant over an extended period. Dr.
Isensee opined that claimant's pain
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complaints were causally related to the work
accident, and that claimant had not yet
reached maximum medical improvement. Dr.
Isensee also noted that in November 1998,
the claimant attempted unsuccessfully to
return to work as a bus driver. Dr. Isensee
feels that the claimant is presently capable
of light-duty work, and opines that claimant
is not a malingerer.
. . . We find the opinions of Dr.
Isensee persuasive, and find that the
employer has failed to prove that claimant
is capable of performing the duties of her
pre-injury work as a bus driver.
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechnical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991). In its role as fact finder, the
commission was entitled to weigh the medical evidence. The
commission did so and articulated legitimate reasons for
accepting the opinions of the treating neurologist, Dr. Isensee,
while rejecting the contrary opinions of independent medical
examiner, Dr. Kenneth W. Eckmann. "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).
Based upon Dr. Isensee's opinions, we cannot find as a
matter of law that employer sustained its burden of proving that
claimant was able to return to her pre-injury work as of
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September 30, 1998. Accordingly, we affirm the commission's
decision.
Affirmed.
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