COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
LOUISA COUNTY SCHOOL BOARD
AND
SCHOOL SYSTEMS OF VIRGINIA
SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2901-96-2 APRIL 8, 1997
LUCILLE YANCEY SHELTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(R. Temple Mayo; Taylor & Walker, P.C., on
brief), for appellants.
(Louis D. Snesil; McDonald & Snesil, P.C.,
on brief), for appellee.
Louisa County School Board and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that Lucille Y. Shelton was no longer disabled due to her
compensable industrial injury and could return to her pre-injury
employment. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"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)). Unless we can say as a matter of law that the
employer's evidence proved that Shelton was no longer disabled as
a result of her compensable accident and was able to return to
her pre-injury work, the commission's findings are binding and
conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va.
697, 699, 173 S.E.2d 833, 835 (1970).
In finding that employer failed to sustain its burden of
proof, the commission accepted the opinions of Shelton's treating
physicians, Dr. Michael Decker, a physiatrist, and Dr. Gregory J.
O'Shanick, a psychiatrist, both of whom opined that Shelton
continued to be totally disabled from returning to her pre-injury
employment as a result of her compensable September 23, 1994
work-related injuries. The commission rejected the contrary
opinion of Dr. Kevin F. Hanley, an orthopedic surgeon, who
examined Shelton at employer's request. In cases of conflicting
medical evidence, "[t]he general rule is that when an attending
physician is positive in his diagnosis . . . , great weight will
be given by the courts to his opinion." Pilot Freight Carriers,
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1 Va. App. at 439, 339 S.E.2d at 572. The opinions of Drs.
Decker and O'Shanick support the commission's decision.
The commission, in its role as fact finder, was entitled to
give little weight to Dr. Hanley's opinion. The commission found
that Dr. Hanley's personal attacks upon Shelton and her treating
physicians rendered his conclusions of little probative value.
In addition, the commission noted that Dr. Hanley questioned the
initial injury and any resulting disability, when those issues
had been previously resolved. "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 against employer, finding that Shelton had not recovered
from her work-related injuries and was not able to return to her
pre-injury employment. That finding is binding upon us.
Accordingly, we cannot find as a matter of law that employer's
evidence sustained its burden of proof.
Shelton's request for attorney's fees and costs pursuant to
Code § 65.2-713 is denied. For the reasons stated, we affirm the
commission's decision.
Affirmed.
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