COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
DENNIS D. POLESKY
MEMORANDUM OPINION * BY
v. Record No. 2468-96-4 JUDGE JAMES W. BENTON, JR.
APRIL 15, 1997
ALEXANDRIA EXXON AND
UNITED STATES FIDELITY & GUARANTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christopher Paul Schewe (Cake, Rhoades &
Schewe, P.C., on brief), for appellant.
Joseph F. Giordano (Semmes, Bowen & Semmes,
on brief), for appellees.
Dennis D. Polesky appeals from the commission's ruling that
he failed to prove a change in condition and a compensable
disability beginning on September 1, 1995. Polesky contends that
the commission improperly invoked the principle of res judicata
and that no credible evidence supported the commission's
decision. For the reasons that follow, we affirm the decision.
I.
Viewing the evidence in the light most favorable to the
employer, the party who prevailed before the commission, see
Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504,
339 S.E.2d 916, 916 (1986), the record proved that Polesky was
hired by the employer in 1985 as a gas station attendant.
Because Polesky had informed the employer that he had seven prior
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
hernia operations which permanently restricted him from lifting
more than fifteen pounds, the employer hired him in a light duty
capacity. On September 17, 1994 Polesky lifted one of the gas
station's bay doors and felt a sharp pain in the left side of his
lower back.
Polesky initially received treatment from Dr. Henry
McCleary, a chiropractor. Dr. McCleary excused Polesky from work
until September 24, 1994 and referred Polesky to Dr. Abdorasool
Janati, a neurologist. Dr. Janati requested an MRI, which, when
performed on October 24, 1994, showed "no evidence for disc
herniations." Several weeks later, Dr. Janati performed an EMG
study and concluded that Polesky had "a mild L3 radiculopathy on
the left." Dr. Janati also performed a somatosensory evoked
response study of Polesky's lower extremities and reported that
the result was normal.
When the employer offered Polesky a panel of physicians,
Polesky selected Dr. Wayne C. Lindsey, an orthopedist. Dr.
Lindsey evaluated Polesky on November 1, 1994 and referred
Polesky to physical therapy for hamstring stretching and lumbar
strengthening. However, Dr. Lindsey reported that Polesky was
capable of resuming his normal light duty work activities.
Polesky was delayed in his return to work because of
renovations at the gas station, and he returned to work on
December 29, 1994. After returning to work, Polesky participated
in a full-time work hardening program at the Rehability Center
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that consumed his work days from January 4, 1995 to January 20,
1995. The final report from the Rehability Center recommended
that Polesky return to his full-time former employment.
In February 1995, Dr. Lindsey reviewed the reports from the
Rehability Center and released Polesky to his regular duties.
Polesky continued his full-time employment duties until March 3,
1995. Polesky testified that on March 3 he experienced pain when
raising doors.
Noting that Dr. Lindsey had directed Polesky to return to
work, Dr. McCleary opined on March 3, 1995 that Polesky had been
"forced back to full time work [too] quickly" and that working
had aggravated his condition. He recommended that Polesky be put
on full disability status until further notice. On March 3, Dr.
Janati also opined that Polesky was totally disabled.
On March 22, 1995, Polesky filed a claim for benefits and
alleged that he was disabled beginning September 17, 1994, and
continuing. Dr. Janati reported again on August 4, 1995, shortly
before the evidentiary hearing, that Polesky "continues to be
totally disabled." Following an evidentiary hearing on August 8,
1995, the deputy commissioner found that Dr. Lindsey, the last
physician who examined Polesky, opined that Polesky was able to
work and that no physician had examined Polesky after March 3.
Although the deputy commissioner had as evidence Dr. McCleary's
March 3, 1995 opinion and Dr. Janati's March 3, 1995 and August
4, 1995 opinions that Polesky was disabled, the deputy
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commissioner ruled "that the evidence does not establish
continuing total work incapacity from March 3, 1995." The deputy
commissioner entered an award for compensation for total work
incapacity from January 11, 1995 through January 24, 1995.
Polesky did not appeal from that decision.
Later, Polesky filed a change in condition application,
seeking total disability benefits from March 3, 1995 and
continuing. At the March 28, 1996 evidentiary hearing on that
application, Polesky testified that he had not suffered any
additional injuries after August 1995. The evidence also proved
that Dr. McCleary examined Polesky on September 12, reported that
his disability status had not changed, and continued treating
Polesky. On September 14, 1995, Dr. Janati reported that he
examined Polesky, noted that his symptoms were "essentially
unchanged," and opined that Polesky remained totally disabled.
Dr. Mirza Baig examined Polesky in October 1995 and
suggested that Polesky consider percutaneous lumbar discectomy
because, among other reasons, the MRI given in 1994 suggested a
disc herniation. While continuing to treat Polesky, Dr. Janati
recommended that he receive epidural steroid blocks and concurred
with Dr. Baig that surgery might be necessary. However, Dr.
Lindsey examined Polesky in November 1995 and restated his
opinion that Polesky could continue his normal work activities.
Following the evidentiary hearing, the deputy commissioner
ruled that Polesky has been disabled since September 1995, that
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the MRI confirmed the disc herniation, and that Polesky was
entitled to temporary total disability benefits from September 1,
1995 and continuing until his conditions change. The commission,
however, ruled that Polesky had not met his burden of proving a
change in condition and reversed the deputy commissioner's
decision. In so ruling, the commission made the following
findings:
We find that the medical reports from
the treating physicians demonstrate no actual
change in condition since [Polesky's]
disability status was determined by the
Deputy Commissioner in the Opinion issued
August 31, 1995. The claimant in these
proceedings essentially asks the Commission
to reevaluate evidence that is now restated
by his treating physicians. There is no new
evaluation based on evidence not earlier
available or considered by the physicians, or
by the Deputy Commissioner when the case was
earlier decided. We therefore find no change
in condition, and the claimant is barred by
res judicata from a reconsideration of
disability status that is unchanged since
March 3, 1995.
II.
"General principles of work[er]'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)). "[I]t is fundamental that a finding of fact made by
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the Commission is conclusive and binding upon this court on
review." Virginia Dept. of Corrections v. Powell, 2 Va. App.
712, 714, 347 S.E.2d 532, 533 (1986). Equally fundamental is the
principle that "[a] question raised by conflicting medical
opinion is a question of fact." Id.
The record clearly established that following the first
evidentiary hearing the deputy commissioner found that Dr.
Janati's and Dr. McCleary's diagnoses were not persuasive. The
deputy commissioner gave little weight to their reports,
including Dr. Janati's report dated August 4, 1995, that Polesky
continued to be disabled. Instead, the deputy commissioner
relied upon Dr. Lindsey's opinion that Polesky was not disabled.
Thus, the deputy commissioner found that Polesky was entitled to
compensation for two weeks in January 1995 and proved no
continuing disability after that period.
Polesky's failure to appeal those findings is significant
because in September of 1995, a period in which Polesky contends
that he experienced a change in condition, Dr. Janati reported
that Polesky's "symptoms remain[ed] essentially unchanged" and
that he "remain[ed] totally disabled." Likewise, Dr. McCleary
examined Polesky in September 1995 and also reported that
"Polesky was placed in a total disability status on March 3,
1995" and that he continued to be disabled. Both doctors
believed that Polesky's condition had continued to be the same
since March 3, 1995. Their reports fail to establish that
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Polesky's condition had significantly changed since March 3,
1995, the date the deputy commissioner found was the end of
Polesky's disability.
The commission properly found that, to the extent that Dr.
Janati and Dr. McCleary based their post-August 1995 reports upon
their findings that Polesky was disabled on March 3, 1995 and
continued to be so disabled, Polesky was barred by res judicata
from seeking to relitigate the initial deputy commissioner's
finding that the evidence at the August 8, 1995 hearing did not
prove disability after March 3, 1995. The evidence at that
hearing, including a report from Dr. Janati dated August 1995,
was found insufficient to prove a disability by a preponderance
of the evidence.
"The true test of the conclusiveness of
a former judgment with respect to particular
matters is identity of issues. If a
particular point or question is in issue in
the second action, and the judgment will
depend on the determination of the particular
point or question, a former judgment between
the same parties will be final and conclusive
in the second [action] if that same point was
in issue and adjudicated in the first suit."
Allegheny Airlines, Inc. v. Merillat, 14 Va. App. 341, 344, 416
S.E.2d 467, 469 (1992) (citation omitted). The commission
properly concluded that to the extent that Dr. Janati and Dr.
McCleary based their post-August 1995 findings of disability on
their diagnoses that Polesky's March 3, 1995 disability continued
unchanged, those reports were being used by Polesky contrary to
principles of res judicata.
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III.
On appeal, we must determine if there is credible evidence
in the record to sustain the commission's findings that Polesky
did not prove a change in condition. See Sneed v. Morengo, Inc.,
19 Va. App. 199, 204-05, 450 S.E.2d 167, 170-71 (1994). "'In
determining whether credible evidence exists, the appellate court
does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of the
witnesses.'" Falls Church Constr. Corp. v. Valle, 21 Va. App.
351, 359, 464 S.E.2d 517, 522 (1995) (citation omitted). The
opinion of the commission must be affirmed if it is based upon
credible evidence in the record. See Marketing Profiles, Inc. v.
Hill, 17 Va. App. 431, 435, 437 S.E.2d 727, 731 (1993) (en banc).
The evidence in the record proved that Dr. Lindsey, who
opined that Polesky was not disabled in February 1995, also
examined Polesky in November 1995. Dr. Lindsey opined that
Polesky had chronic lumbar strain consistent with his
pre-employment condition, that he had "no evidence of
radiculopathy that would warrant any surgical treatment," and
that Polesky "clearly demonstrates capabilities that are
consistent with his pre-injury level of activity." Based on
those opinions, Dr. Lindsey stated that Polesky "can resume his
pre-injury level of work activity."
The commission acknowledged that Dr. Mirza Baig examined
Polesky and recommended surgery. However, the commission found
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that Dr. Baig's diagnosis was based in large measure upon
interpretations earlier reported by Drs. Janati and McCleary and
upon an MRI study that was performed in 1994, before the first
evidentiary hearing. Thus, the commission found Dr. Baig's
reports to be less persuasive than the reports of Dr. Lindsey,
which were based upon a more recent examination of Polesky.
"Questions raised by conflicting medical opinions must be
decided by the commission." Penley v. Island Creek Coal Co., 8
Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). The commission
resolved the conflict in the medical evidence when it found Dr.
Lindsey's opinion to be more persuasive. That finding is binding
upon us. "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). We cannot say that the
commission's factual finding that the medical evidence failed to
prove a change of condition is unsupported by credible evidence
in the record.
For the foregoing reasons, we affirm the commission's
decision.
Affirmed.
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