COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
UNITED TRUCK WASH AND
CONTINENTAL INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1275-98-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 9, 1999
KENNETH L. JOHNSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Jonathan S. Rochkind for appellants.
Craig A. Brown (Lawrence J. Pascal;
Ashcraft & Gerel, on brief), for appellee.
In this appeal, United Truck Wash ("employer") and
Continental Insurance Company ("insurer") contend the Workers'
Compensation Commission erred in finding that: (1) Kenneth L.
Johnson ("claimant") was not capable of performing pre-injury
work duties after April 8, 1997; and (2) the claimant had
suffered a wage loss between May 7, 1997 and November 1997.
We disagree and affirm.
On appeal, we review the evidence in the light most
favorable to the party prevailing below. R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Claimant began working for United Truck Wash as a bay attendant
in September of 1994. As a bay attendant, claimant washed trucks
eight hours every work-day. Claimant's duties required him to be
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
on his feet, bending, squatting, and climbing for much of the
day. On February 22, 1995, claimant sustained an injury to both
knees and his left forearm when he tripped over a cord and fell.
On May 7, 1997, employer filed an application for hearing,
seeking to terminate total disability benefits claimant had
received since January 29, 1997. Based on various medical
reports by claimant's physician, Dr. Walter Rabhan, employer and
insurer alleged that claimant was able to return to his
pre-injury employment on April 8, 1997.
On January 14, 1998, citing claimant's commencement of
employment at a restaurant on May 12, 1997 and several of Dr.
Rabhan's reports, a deputy commissioner found that claimant had
recovered from his compensable injury and had been approved for
pre-injury employment without restrictions on April 8, 1997.
Accordingly, the deputy commissioner terminated claimant's
benefits effective May 7, 1997.
The full commission reversed, finding that employer and
insurer failed to meet their burden of proving by a preponderance
of the evidence that claimant was capable of performing his
regular duties beginning April 8, 1997 and continuing thereafter.
The commission specifically stated:
[i]t appears from the medical evidence
presented that the claimant did not remain
capable of performing his regular duties
since April 8, 1997. At times, Dr. Rabhan
instructed the claimant to refrain from
putting pressure or kneeling on his knee.
This suggests that the recommendation for
return to work was not without limitations.
Moreover, the claimant was totally
- 2 -
incapacitated as a result of surgery in
November 1997.
The commission indefinitely reinstated payment of temporary
total disability benefits to claimant as of May 8, 1997.
Employer and insurer appeal this decision.
Findings of fact by the commission are conclusive and
binding on appeal when supported by credible evidence. Code
§ 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991). When reviewing such findings,
we will not "retry the facts before the Commission nor do we
review the weight, preponderance of the evidence, or the
credibility of witnesses." Caskey v. Dan River Mills, Inc., 225
Va. 405, 411, 302 S.E.2d 507, 510 (1983). So long as credible
evidence supports the commission's findings, the fact that
contrary evidence may be found in the record is of no
consequence. Manassas, 13 Va. App. at 229, 409 S.E.2d at 826.
If no credible evidence supports the commission's findings of
fact, "'its findings are not binding on us and the question of
the sufficiency of the evidence becomes one of law.'" Stocks v.
Fauquier County School Bd., 222 Va. 695, 698, 284 S.E.2d 588, 589
(1981) (quoting Goodyear v. Watson, 219 Va. 830, 833, 252 S.E.2d
310, 312 (1979)).
"A finding based upon conflicting expert medical opinions is
one of fact which cannot be disturbed . . . ." Virginia Dep't of
State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308
(1985). See Johnson v. Capitol Hotel, 189 Va. 585, 588, 54
- 3 -
S.E.2d 106, 107-08 (1949) (stating that a finding of the
commission resting on conflicting medical testimony is a finding
of fact). This rule also applies when "a sole expert gives
conflicting opinions." Chandler v. Schmidt Baking Co., 228 Va.
265, 268, 321 S.E.2d 296, 298 (1984). "It is not our function,
but the Commission's, to weigh conflicting evidence, and when
there is credible evidence to support the Commission's findings,
we are bound thereby." Id.
The medical evidence before the commission was in conflict.
The record reveals that Dr. Rabhan examined claimant on seven
occasions from April 2, 1997 until claimant underwent a surgical
procedure in November of 1997. During this period of time, Dr.
Rabhan recommended or indicated that claimant could carry out
"full activities" in three of his post-examination reports. In
five reports, however, Dr. Rabhan noted tenderness in claimant's
left knee. On two occasions Dr. Rabhan indicated that claimant
should refrain from putting pressure on his left knee. On one
such occasion, the doctor instructed claimant that he should both
1
"keep pressure off the knee" and "continue full activities."
Further, Dr. Rabhan excused claimant from work from November 20
1
The full report provides:
Plan: I told him to keep pressure off the
knee. He can continue full activities. I
would only explore this area and remove the
Mytec if his symptoms don't improve. They
have not really improved in the last year but
I want to see if he can't get along with this
as is. Return in two months for recheck.
- 4 -
to December 1, 1997 so that he might recover from his surgery.
In light of the conflicting medical evidence, we treat the
commission's determination as to whether claimant was capable of
returning to pre-injury duties after April 8, 1997 as a finding
of fact. As such, the commission's resolution of the conflicting
evidence in favor of claimant must be upheld if supported by
credible evidence. Based on Dr. Rabhan's instructions to keep
pressure off claimant's left knee and on claimant's total
incapacity as a result of surgery in November of 1997, we find
credible evidence to support the commission's finding that
claimant was not able to fully perform the duties of his
pre-injury employment. See Celanese Fibers Co. v. Johnson, 229
Va. 117, 120, 326 S.E.2d 687, 690 (1985).
Employer and insurer also contend that the commission erred
in finding that claimant had suffered a wage loss between May 7,
1997 and November 1997. The contention is without merit.
The only issues decided by the full commission in this case
were whether claimant "was capable of returning to his pre-injury
employment on April 8, 1997" and whether the employer's
application for hearing should have been rejected as untimely.
Neither employer nor insurer raised an issue as to whether
claimant had suffered a wage loss before the full commission and
the commission did not address the issue. The issue on appeal is
therefore barred. Cibula v. Allied Fibers & Plastics, 14 Va.
App. 319, 323, 416 S.E.2d 708, 710 (1992).
- 5 -
Accordingly, we affirm the commission's award.
Affirmed.
- 6 -