COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ARC ELECTRIC, INC. AND
SAFEGUARD INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 2037-97-2 PER CURIAM
DECEMBER 23, 1997
JAMES A. GODWIN, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, on brief), for
appellants.
No brief for appellee.
ARC Electric, Inc. and its insurer (hereinafter referred to
as "employer") contend that the Workers' Compensation Commission
erred in finding that employer failed to prove that James A.
Godwin, Jr. was released to return to his pre-injury work. Upon
reviewing the record and the employer's brief, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. See Rule 5A:27.
Pursuant to a memorandum of agreement, the commission
entered an award in favor of Godwin for temporary total
disability. In response to the employer's application for a
hearing, the commission held that the medical reports of Dr.
Rudolph Cejas, who examined Godwin while he was incarcerated, did
not prove that Godwin's knee injury had sufficiently healed so
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that he could return to his pre-injury employment. In so ruling,
the commission made the following findings:
On July 19, 1996, Dr. Cejas evaluated Godwin
for pain in the left ear, which was diagnosed
as otitis externa. On August 29, 1996, a
medical record entry was made by one of Dr.
Cejas's assistants, that [Godwin] "[m]ay
return to work v/o Dr. Cejas." Dr. Cejas
again evaluated Godwin on September 4, 1996,
for recurrent pain in the left ear. He
diagnosed otitis media of the left ear,
prescribed medication and opined that
[Godwin] could "[r]eturn to work."
. . . Dr. [Stephen] McCoy [, Godwin's
treating orthopedist,] found [Godwin] totally
disabled before his incarceration and has not
examined him since. There is no evidence
that Dr. Cejas evaluated [Godwin's] knee.
The only medical records from Dr. Cejas
relate to treatment for [Godwin's] left ear
infection. Because Dr. Cejas does not
mention [Godwin's] right knee injury in his
notes, we cannot conclude that the work
release related to [Godwin's] knee and not
the condition for which he rendered
treatment, complaints of left ear pain.
"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
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 the
employer proved that Godwin's knee injury had sufficiently healed
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so that he could return to his pre-injury employment. See Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
The commission articulated legitimate reasons for giving
little probative weight to Dr. Cejas' reports. In light of Dr.
Cejas' diagnosis, which was limited to Godwin's ear problem, the
commission was entitled to conclude that Dr. Cejas' reports did
not relate to Godwin's knee injury. No evidence in the record
proved that Godwin's knee injury had sufficiently healed so that
he could carry out all of the duties of his pre-injury
employment.
Because the medical evidence was subject to the commission's
factual determination, see Hungerford Mechanical Corp. v. Hobson,
11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991), we cannot find
as a matter of law that the evidence proved that Godwin was
capable of returning to his pre-injury employment. Accordingly,
we affirm the commission's decision.
Affirmed.
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