COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
HUNAN IMPERIAL RESTAURANT AND
FIRSTLINE NATIONAL INSURANCE
COMPANY
MEMORANDUM OPINION *
v. Record No. 1990-98-4 PER CURIAM
JANUARY 26, 1999
HAN TRUNG LAM
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, on briefs), for
appellants.
(John R. Severino; Portner & Shure, on
brief), for appellee.
Hunan Imperial Restaurant and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in finding that employer failed
to prove that Han Trung Lam ("claimant") was able to return to
his pre-injury employment as of January 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
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).
In denying employer's application, the commission found as
follows:
[O]n January 30, 1998, Dr. [Jahan] Joubin
merely advised the claimant to perform range
of motion exercises and "return to pre-injury
activity." The fact that [claimant] was
allowed to return to pre-injury activity does
not necessarily mean that he was capable of
performing all the duties of his pre-injury
work. Dr. Joubin did not specifically
address work status, and gave no specific
opinion that the claimant was able to perform
all the duties of his pre-injury work, or
that he could work without any limitations or
restrictions.
Moreover, we note that Dr. [Charles C.]
Young's March 31, 1998, examination and
evaluation was much more comprehensive than
the examination described in Dr. Joubin's
January 30, 1998, office note. Further, we
observe that Dr. Young is a specialist in the
field of physical medicine and
rehabilitation. Dr. Young specifically
opined that the claimant "still cannot
function well as a restaurent [sic] cook."
We find Dr. Young's opinion persuasive, due
to the fact that he performed a comprehensive
evaluation, and the fact that he is a
specialist in the field of physical medicine
and rehabilitation.
The commission articulated legitimate reasons for concluding
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that Dr. Joubin's medical records failed to address the issue of
whether claimant was able to perform all of the duties of his
pre-injury work as a cook. In light of these reasons, the
commission was entitled to conclude that Dr. Joubin's opinions
did not constitute sufficient evidence to prove that claimant was
capable of carrying out all of the duties of his pre-injury work.
While we have stated that the opinion of the treating physician
is entitled to great weight, Pilot Freight Carriers, 1 Va. App.
at 439, 339 S.E.2d at 572, the law does not require that the
treating physician's opinion be accepted over that of others.
Moreover, "[m]edical 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). Thus, the commission was entitled to
accept the opinion of Dr. Young, which supported the commission's
finding that claimant was not able to return to the duties of his
pre-injury work.
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 January 30, 1998, claimant was capable
of returning to his pre-injury employment. Accordingly, we
affirm the commission's decision.
Affirmed.
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