COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
BAKER ROOFING COMPANY
AND TRANSPORTATION INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2786-97-1 PER CURIAM
MARCH 31, 1998
LARRY MASON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roya Palmer Ewing, on brief), for
appellants. Appellants submitting on brief.
No brief for appellee.
Baker Roofing Company and its insurer (hereinafter referred
to as "employer") appeal a decision of the Workers' Compensation
Commission ("commission") denying employer's application alleging
a change-in-condition. Employer contends that the commission
erred in finding that it failed to prove that Larry Mason
("claimant") was released to return to his pre-injury employment
as of February 1, 1997. Finding no error, we affirm the
commission's decision.
"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
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 due to the ambiguities in
the opinions of the treating neurosurgeon, Dr. Edward B. Butts,
the commission found as follows:
If it is assumed that Dr. Butts meant to
release the claimant on February 1, the
release is sufficiently current to be valid,
but he never stated when, in the month of
February, the claimant was released. If, for
example, he intended to release him in the
middle of the month, the release would be
prospective and not sufficiently current to
sustain the employer's application.
Unfortunately, the lack of clarification
places us in the position of being asked to
assume Dr. Butts' intention, which we are
reluctant to do.
The second problem is that Dr. Butts
reported on May 16, 1997, that the claimant
was to undergo a myelogram on May 19, 1997,
because of "continued pain." In a disability
certificate of May 19, 1997, he stated: "Pt.
had myelogram today which showed herniated
disc L3-4 and will need surgery. He is
unable to work at this time." Again, Dr.
Butts' intention is not clear. The language
of the disability certificate may mean that
his opinion is that the claimant was not
disabled between February and May 19, 1997.
On the other hand, Dr. Butts reported
continuing pain, followed by a new finding of
a herniated disc at L3-4 which he may or may
not relate to the accident. These findings
and complaints raise a serious question as to
whether Dr. Butts would still be of the
opinion that the claimant could work as a
roofer between February and May 19, 1997.
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Again, we are left to assume his intentions,
which we decline to do.
The commission articulated legitimate reasons for giving
little probative weight to Dr. Butts' opinions. In light of
these reasons, the commission was entitled to conclude that Dr.
Butts' opinions did not constitute sufficient evidence to prove
that claimant was capable of carrying out all of the duties of
his pre-injury employment. "Medical 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). Moreover, the commission
did not err in considering Dr. Butts' May 16, 1997 medical report
and his May 19, 1997 disability certificate. Those medical
reports were properly before the commission and were relevant to
its determination of whether claimant had been released to return
to his pre-injury employment.
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 February 1, 1997, claimant was capable
of returning to his pre-injury employment. Accordingly, we
affirm the commission's decision.
Affirmed.
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