COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JIMMY WAYNE POWELL
v. Record No. 2108-96-1 MEMORANDUM OPINION *
PER CURIAM
ST. JOE CONTAINER COMPANY JANUARY 28, 1997
AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert J. Macbeth, Jr.; Rutter & Montagna,
on brief), for appellant.
(Robert A. Rapaport; Lynne M. Ferris; Knight,
Dudley, Clarke & Dolph, on brief), for
appellees.
Jimmy Wayne Powell contends that the Workers' Compensation
Commission erred in finding that he failed to prove he was
disabled as of January 31, 1995, due to the compensable
aggravation of his preexisting C6-7 cervical condition. 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).
So viewed, the evidence established that on January 31,
1995, Dr. Peter M. Klara, a neurosurgeon, completed a disability
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
form, indicating that Powell was "disabled for approximately 30
days or until eval of EMG & NCV." Dr. Klara did not indicate on
the form the specific cause of Powell's disability. Powell
testified that he understood from Dr. Klara that he was to remain
out of work until surgery was performed.
The evidence proved that in addition to the compensable
aggravation of Powell's preexisting C6-7 cervical condition,
Powell also suffered from degenerative changes throughout his
spine and a previous back injury in 1988. Dr. Klara did not
comment upon Powell's disability in his later medical reports.
None of the other physicians who examined Powell reported the
cause of Powell's disability.
The commission found that Powell proved that his compensable
July 7, 1993 injury by accident caused an aggravation of his
preexisting C6-7 cervical condition, rendering employer
responsible for medical treatment related to the C6-7 cervical
condition. The parties did not appeal this finding. The
commission found, however, that although Powell proved that
medical treatment related to the aggravation of his preexisting
C6-7 cervical condition was compensable, neither Powell's
testimony nor Dr. Klara's January 31, 1995 office note was
sufficient to establish that Powell was disabled as of January
31, 1995, due to his compensable condition.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground
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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
Powell proved he was disabled after January 31, 1995 and that his
disability was causally related to the compensable aggravation of
his C6-7 preexisting cervical condition. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In light of the undisputed evidence that Powell suffered
from degenerative changes throughout his spine and from a prior
back injury in 1988, which were unrelated to Powell's compensable
injury by accident, the commission was entitled to give little
weight to Powell's testimony that he was advised to remain out of
work until surgery was performed. Moreover, the commission, in
its role as fact finder, found Dr. Klara's January 31, 1995 note
to be inconclusive. "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). As the commission noted in
its response to Powell's Motion for Reconsideration:
[Dr. Klara's January 31, 1995] report does
not indicate that the disability is based
upon any aggravation of the claimant's
preexisting condition in the industrial
accident. You are aware that the claimant
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suffers from some degenerative changes
throughout the spine, and a prior back injury
in 1988. Only the cervical condition was
aggravated in the industrial injury.
Moreover, we cannot determine whether this
note indicates actual physical disability, or
is a precaution pending diagnostic studies.
The MRI then revealed a small bulging
cervical disc, but there was no further
comment in any of the medical reports
regarding disability after this condition was
found. The office note of January 31, 1995,
in summary, is not sufficient to establish
disability, even when considered in
conjunction with the claimant's testimony.
Because the medical evidence was subject to the commission's
factual determination, we cannot find as a matter of law that the
evidence established a causal link between the compensable
aggravation of Powell's C6-7 preexisting cervical condition and
his asserted post-January 31, 1995 disability. Accordingly, we
affirm the commission's finding that Powell's evidence failed to
sustain his burden of proving he suffered from causally-related
disability after January 31, 1995.
Affirmed.
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Jimmy Wayne Powell v. St. Joe Container Co.
Combined Opinion