COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
JOSE MARIA DEJESUS VENTURA
MEMORANDUM OPINION *
v. Record No. 2108-97-4 PER CURIAM
FEBRUARY 3, 1998
DITTMAR COMPANY AND PENNSYLVANIA
MANUFACTURERS' ASSOCIATION
INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Simon M. Osnos, on brief), for appellant.
No brief for appellees.
Jose Maria Dejesus Ventura (claimant) appeals a decision of
the Workers' Compensation Commission terminating his award of
temporary total disability benefits and denying his request for a
change in treating physicians. Claimant contends that the
commission erred in finding that (1) he was able to return to his
pre-injury employment as of December 3, 1996; and (2) he was not
entitled to a change in treating physicians. Finding no error,
we affirm.
I.
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). "[I]t
is fundamental that a finding of fact made by the Commission is
conclusive and binding upon this court on review. A question
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
raised by conflicting medical opinion is a question of fact."
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986).
As fact finder, the commission was entitled to accept the
opinions of the treating physicians, Drs. Joseph White and Ronald
Uscinski, and to reject the contrary opinion of Dr. Lewis B.
Eberly. Drs. White and Uscinski based their opinion that
claimant was capable of returning to his pre-injury employment
upon diagnostic testing and their evaluation of claimant's
condition and improvement since the compensable accident. On the
other hand, Dr. Eberly, a physician chosen by claimant on his
own, examined claimant on one occasion and relied solely upon
claimant's articulated history without the benefit of the
treating physicians' medical records. Neither Dr. White nor Dr.
Uscinski could find any objective basis for claimant's persistent
symptoms. The opinions of Drs. White and Uscinski constitute
credible evidence to support the commission's decision that
claimant was able to return to his pre-injury employment as of
December 3, 1996. "The fact that there is contrary evidence in
the record is of no consequence if there is credible evidence to
support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
II.
Whether a treating physician has released or abandoned his
patient generally is determined by the express intent of the
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physician. In some cases, the total circumstances must be
analyzed in order to determine whether the discharge, release, or
abandonment of the patient was intended. This is a factual
determination which must be proved by clear and convincing
evidence. See Jensen Press v. Ale, 1 Va. App. 153, 157, 336
S.E.2d 522, 524 (1985).
In denying claimant's request for a change in treating
physicians, the commission found as follows:
There is no evidence in the record that
supports the claimant's request for a change
in physicians. Both Dr. White and Dr.
Uscinski have documented their treatment of
the claimant and it appears from the record
to be appropriate and adequate. We see no
evidence that corroborates the need for the
claimant to seek treatment from another
physician.
The commission's findings are amply supported by the medical
records and will not be disturbed on appeal. Because claimant
failed to present any clear and convincing evidence of
abandonment or inadequate treatment by Drs. White and Uscinski,
we cannot find as a matter of law that the commission erred in
denying claimant's request for a change in treating physicians.
For these reasons, we affirm the commission's decision.
Affirmed.
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