Opinion
Record No. 2574-92-4
April 13, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(A. Thomas Lane, Jr.; Abbott Lane, on brief), for appellant. Appellant submitting on brief.
(M. Bruce Wallinger; Wharton, Aldhizer Weaver, on brief), for appellees. Appellees submitting on brief.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Aubrey L. Evans appeals from a decision of the Workers' Compensation Commission denying his application alleging a change in condition. Evans contends that the commission erred in rejecting the opinion of orthopedic surgeon Dr. Ervin E. Hess that Evans was disabled from work and accepting the contrary opinion of treating neurosurgeon Dr. John A. Jane, finding that Evans did not prove a compensable change in condition and is capable of performing his regular work. We agree with the commission and affirm the decision.
"[I]t 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) (citations omitted).
On July 23, 1991, August 16, 1991 and September 18, 1991, Dr. Jane opined that he found little medically wrong with Evans and nothing to prevent his return to full work activity. In its November 23, 1992 opinion, the commission summarized Dr. Jane's remaining reports as follows:
On March 11, 1992, Dr. Jane again stated that he saw no reason why Evans could not return to full activity. As of March 28, Dr. Jane again stated that he had reviewed the claimant's chart and inconsistencies in it. He stated that Evans' problems revolve around "cutoffs" which he classified as "indeed minor due to osteoarthritic change and not due to disc herniations." He identified an old chronic C6 radiculopathy and osteoarthritis which he attributes to aging which correlates with Evans' pain. In remarking concerning the visible conditions on myelography, he stated that 30% to 40% of 55-year-old males "would have a myelogram that would resemble Mr. Evans'. I don't doubt that he has some pain, but it is simply my personal opinion that a little bit of pain does not result in disability."
Dr. Jane was a treating physician to whom Evans was referred by Dr. Hess for neurological evaluation, and Dr. Hess saw Evans on only two occasions after the referral. Dr. Jane's opinion is supported by recent examinations and diagnostic testing, and the commission simply accepted his findings rather than those of Dr. Hess.
Accordingly, we affirm the commission's decision.
Affirmed.