COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
WRANGLER\VF CORPORATION
MEMORANDUM OPINION *
v. Record No. 1634-96-3 PER CURIAM
NOVEMBER 12, 1996
BONNIE MAE WOODWARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(J. David Griffin; Fowler, Griffin, Coyne &
Coyne, on briefs), for appellant.
(Terry L. Armentrout; Armentrout & Armentrout,
on brief), for appellee.
Wrangler, Inc. ("employer") appeals from a decision of the
Workers' Compensation Commission ("commission") awarding Bonnie
M. Woodward ("claimant") temporary total disability benefits
commencing April 18, 1995. Employer contends that the commission
erred in finding that (1) claimant was totally disabled after
April 20, 1995, and therefore, did not unjustifiably refuse
selective employment offered to her by employer on April 20,
1995; and (2) claimant's disability was causally related to her
compensable April 17, 1995 injury by accident. Pursuant to Rule
5A:21(b), claimant raises the additional question of whether the
commission erred in finding that employer offered claimant a
valid panel of physicians from which to choose a treating
physician. Finding no error, we affirm the commission's
decision.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In awarding temporary total disability benefits to claimant
and ruling that claimant was not obligated to accept light-duty
employment offered to her by employer on April 20, 1995, the
commission found as follows:
The medical evidence indicates that Dr.
[Fang] Horng took the claimant out of work
from April 18 until April 25, 1995, when he
released her to light duty. In a subsequent
note of April 24, 1995, he indicated that she
would be totally disabled from April 26,
1995, until an MRI was performed.
On May 2, 1995, the claimant selected
Dr. [James W.] Feeley as her treating
physician, who referred her to Dr. [Frederick
L.] Fox. Based on the medical evidence, she
is entitled to temporary total disability
benefits until May 10, 1995, when she was
released to light duty [by Dr. Fox].
Although we find the treatment rendered by
Drs. Fox and Feeley to be unauthorized, we
accept their opinions regarding disability to
be persuasive.
The medical records and opinions of Drs. Horng, Feeley, and
Fox provide credible evidence to support the commission's
decision. As fact finder, the commission was entitled to give
little weight to the April 18, 1995 report of Robin Rider, a
certified nurse practitioner employed by Dr. G. Gregory Ross. In
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the report, Rider released claimant to return to light-duty work
on April 20, 1995. No evidence indicated whether Dr. Ross
approved of this release. "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). Moreover, "[t]he 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.
On appeal, employer argues that the commission erred in
finding that claimant's continuing disability was causally
related to her compensable injury by accident, rather than to her
October 1995 hospitalization due to a prescription drug overdose.
Employer did not raise this issue before the commission.
Accordingly, we will not consider it for the first time on
appeal. Green v. Warwick Plumbing & Heating Corp., 5 Va. App.
409, 413, 364 S.E.2d 4, 6 (1988); Rule 5A:18.
III.
Claimant's supervisors, Linda Cook and Angela Brumbeck,
testified that, on the day after claimant's accident, they
offered her a panel of physicians, from which she chose Dr. Ross
as her treating physician. Claimant denied selecting Dr. Ross as
her treating physician. Rather, she contended that employer told
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her to go to Dr. Ross. The commission accepted the testimony of
Cook and Brumbeck. It is well settled that the determination of
a witness' credibility is within the fact finder's exclusive
purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374,
381, 363 S.E.2d 433, 437 (1987). The testimony of Cook and
Brumbeck constitutes credible evidence to support the
commission's finding that claimant selected Dr. Ross as her
treating physician from a panel offered to her by employer, and
that the treatment rendered by Drs. Feeley and Fox was
unauthorized.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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