COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
NORTHERN OPERATIONS CENTER, INC.
AND VIGILANT INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2141-98-4 PER CURIAM
JANUARY 19, 1999
MIRTA CASTANEDA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William T. Kennard; Mell, Brownell & Baker,
on brief), for appellants. Appellants
submitting on brief.
(Metin A. Cay; Swiger & Cay, on brief), for
appellee. Appellee submitting on brief.
Northern Operations Center, Inc. and its insurer
(hereinafter referred to as "employer") appeal a decision of the
Workers' Compensation Commission awarding Mirta Castaneda
temporary total disability benefits beginning December 24, 1996
and continuing. Employer contends that the commission erred in
finding that Castaneda's evidence sustained her burden of proving
continuing disability after June 9, 1997. Finding no error, we
affirm.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that Castaneda sustained her burden of proving
continuing disability after June 9, 1997, the commission found as
follows:
Dr. [Saul J.] Kaplan's records anticipated
follow-up examinations every 4-6 weeks, but
there is no suggestion in those records that
he anticipated a change in condition and
disability on such visits. Rather, Dr.
Kaplan clearly reported on December 24, 1996
that the claimant could not work until the
[Reflex Sympathic Dystrophy ("RSD")] problem
had resolved. His subsequent records
demonstrate that condition had not resolved.
Rather, all reports after that date,
including the one on April 28, 1997, show
that Castaneda experienced no change in
condition over that time. Moreover, this is
confirmed by the uncontradicted Attending
Physician's Report issued two days before the
evidentiary hearing, which cannot be
summarily rejected or ignored.
The evidence proved that Dr. Kaplan, Castaneda's treating
orthopedic surgeon, consistently and unequivocally opined that
Castaneda could not return to work until her RSD resolved, which
it had not. In his October 7, 1997 Attending Physician's Report,
Dr. Kaplan indicated that Castaneda had been disabled since
October 7, 1996, and he placed question marks in the blocks on
the form indicating the "Date able to return to light work" and
"Date able to return to regular work." Dr. Kaplan's records and
uncontradicted opinions provide credible evidence to support the
commission's findings. Thus, those findings are binding and
conclusive upon us on appeal. See id.
For these reasons, we affirm the commission's decision.
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Affirmed.
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