Opinion
Record No. 2191-93-1
Decided: May 24, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Sidney H. Kelsey, Jr., on brief), for appellant.
(Philip R. Trapani, City Attorney; Andre A. Foreman, Deputy City Attorney, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Carol S. Burchfield (claimant) contends that the commission erred in denying her change in condition application seeking temporary total disability benefits commencing April 6, 1992. The commission found that, as of March 18, 1992, she had been released to return to her pre-injury job as a police officer without restrictions.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"General principles of workman's compensation law provide that '[i]n an application for review of an award on the ground of change in condition, the burden is on the party alleging such condition 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)).
Furthermore, "it is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review. A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). "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, 214 (1991). Unless we can say as a matter of law that claimant's evidence was sufficient to meet her burden of proof, the commission's findings are binding upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission accepted the opinion of the treating orthopedic surgeon, Dr. Ira M. Cantin, over that of other physicians, and found that claimant was capable of returning to her pre-injury work without restrictions. It was undisputed that employer offered claimant her regular job as a patrol officer following Dr. Cantin's March 18, 1992, release and that claimant rejected that offer. Dr. Cantin's opinion constitutes credible evidence to support the commission's finding that claimant was released to her regular employment on March 18, 1992, and that employer was justified in withdrawing her light duty assignment after that date. "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).
For the reasons stated, we affirm the commission's decision.
Affirmed.