COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
FLOYD S. PIKE ELECTRICAL CONTRACTORS, INC.
AND LIBERTY MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2193-98-3 PER CURIAM
FEBRUARY 23, 1999
DANNY D. MULLINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Deborah W. Dobbins; Gilmer, Sadler, Ingram,
Sutherland & Hutton, on brief), for
appellants.
(Paul L. Phipps; Lee & Phipps, on brief), for
appellee.
Floyd S. Pike Electrical Contractors, Inc. and its insurer
(hereinafter referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in finding that it
failed to prove that Danny D. Mullins ("claimant") was capable of
fully performing the duties of his pre-injury employment as of
April 7, 1997. 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
change to prove his allegations by a preponderance of the
*
Pursuant to Code § 17-1.413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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, unless we can say as a matter of law that
employer proved that claimant was fully able to perform the
duties of his pre-injury employment. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission ruled that claimant's medical treatment by
Drs. Dave G. Klock, Carey W. McKain, Robert S. Hines, Jr., and
W.T. Williams was causally related to his problems with his lower
back precipitated by the June 3, 1996 compensable accident. In so
ruling and in denying employer's application, the commission
found as follows:
It is clear that the claimant suffered from
chronic lower back pain relating to his June
3, 1996, occupational injury. On July 15,
1997, Dr. Hines indicated in his report to
the claimant's disability insurance carrier
that he considered the claimant's condition
of degenerative disc disease, as shown by
MRIs conducted in 1996 and 1997, to be
"chronic." Dr. Hines' examinations of the
claimant in July 1997 and Dr. Williams'
examinations of the claimant in July and
August 1997 reveal pain secondary to and
treatment for disc problems at the L4-5
level. The claimant's initial treating
physician, Dr. Klock, also noted problems at
the same location. The observations are
based chiefly on the MRIs performed in
December 1996 and July 1997. Dr. Hines' July
15, 1997, report to the claimant's disability
insurance carrier noted that the results of
the two MRIs, as far as L4-5 are concerned,
were the "same."
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* * * * * * *
. . . Dr. McKain apparently based his
April 22, 1997, opinion that the claimant was
able to perform the Class A Lineman duties at
least in part on the April 2, 1997, physical
therapist's progress report. As noted above,
however, the claimant has suffered from
chronic back pain during the entire period in
question. Moreover, Dr. McKain's
understanding of the job description was
inaccurate. The claimant's uncontradicted
testimony is that his performance of the
Class A Lineman's job differed from the job
description in several key respects.
Moreover, the job description "averages" the
varied duties that a Class A Lineman might
perform. Where the claimant falls on this
average was not known to Dr. McKain when he
expressed his opinion. . . . Our finding is
supported by the claimant's own testimony
that he did not believe he would be able to
even climb into a "bucket truck," much less
climb a pole while wearing a twenty-five
pound tool belt.
The commission articulated legitimate reasons for giving
little probative weight to Dr. McKain's opinions and to his
approval of the job description. In light of claimant's
uncontradicted testimony regarding the inaccuracy of the job
description submitted to Dr. McKain, the medical records of Drs.
Hines and Williams, and Dr. Hines' opinion that claimant was
unable to return to his pre-injury employment, the commission was
entitled to conclude that Dr. McKain's medical reports and
opinions did not constitute sufficient evidence to prove that
claimant was capable of carrying out all of the duties of his
pre-injury work. "Medical evidence is not necessarily
conclusive, but is subject to the commission's consideration and
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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 the
evidence proved that as of April 7, 1997, claimant was capable of
returning to his pre-injury employment. Accordingly, we affirm
the commission's decision.
Affirmed.
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