Opinion
Record No. 2185-93-3
Decided: May 10, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(S. T. Mullins; Street, Street, Street, Scott Bowman, on brief), for appellants.
(Paul L. Phipps; Wolfe Farmer, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Lebo Mining, Inc. contends that the Workers' Compensation Commission erred in denying its application alleging a change in condition and finding that Charles Bateman was unable to return to his pre-injury work as an underground coal miner. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
"[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). In cases of conflicting medical evidence, " '[t]he general rule is that when an attending physician is positive in his diagnosis of a disease, great weight will be given by the courts to his opinion.' " Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (quoting McPeek v. P.W. W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969)). In addition, "[a] greater number of medical opinions does not necessarily constitute a preponderance of the evidence. In its review, the commission is entitled to decide what evidence, if credible, is entitled to greater weight." Island Creek Coal Co. v. Honaker, 9 Va. App. 336, 339, 388 S.E.2d 271, 273 (1990).
Bateman injured his back on April 4, 1991 in an industrial accident, for which the employer paid compensation. As of June 26, 1992, Dr. S.C. Kotay, the treating orthopedic surgeon, opined that Bateman could not return to his pre-injury work. Dr. Kotay reiterated this opinion in March 1993. At the employer's request, Bateman was examined by two independent physicians, Dr. W. A. McIlwain, orthopedic surgeon, and Dr. Jim C. Brasfield, neurosurgeon. Both doctors noted subjective complaints by Bateman, but determined that he could return to work without restrictions.
The employer filed a change in condition application to terminate benefits based upon the reports of the independent physicians. The full commission considered the reports of all three doctors, found that the treating physician's reports carried more weight, and determined that Bateman was unable to return to his pre-injury work. Dr. Kotay's opinions constitute credible evidence to support the commission's determination. Therefore, the decision is affirmed.
Affirmed.