Opinion
Record No. 2130-92-2
May 18, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Terrence K. Martin; Gibson, Cowardin Overman, on brief), for appellant.
(Charles F. Midkiff; Midkiff Hiner, on brief), for appellees.
Present: Chief Judge Moon, Judges Barrow and Bray.
Pursuant to Code § 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.
Dwyne Edward Smith contends that the commission erred in limiting the period of his disability due to his December 7, 1991 industrial accident to December 8, 1991 through January 6, 1992. He asserts that the evidence supports a finding that he was disabled from December 8, 1991 through June 7, 1992.
On appellate review, we will 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). Factual findings of the commission will not be disturbed on appeal if based upon credible evidence.Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). "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). "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).
The full commission found that Dr. Richard B. McAdam, one of Smith's treating neurologists, released Smith to return to work on January 6, 1992, without restriction, although he continued Smith's physical therapy for two additional weeks. The full commission discounted the opinion of Dr. Wallace K. Garner, neurosurgeon, that Smith was disabled beyond January 6, 1992, on the basis that Dr. Garner's opinion was issued pending further diagnostic procedures, which were not carried out. The commission noted that a CT scan ordered by Dr. Garner and performed on February 6, 1992 revealed a bulging lumbar disc. However, there was no further comment from Dr. Garner in the record regarding disability. The full commission (although confusing Dr. Garner with Dr. McAdam) noted that on May 19, 1992 it was opined that Smith could return to work without restriction. Moreover, although Dr. McAdam maintained that medical treatment was available to Smith from February 7, 1992 until May 19, 1992, Smith did not see any physician during this period. Upon the basis of this record, the full commission found that Smith's injury resulted in disability only for the period December 8, 1991 through January 6, 1992.
It is noted that it was actually Dr. James F. Allen, Dr. McAdam's associate, who examined Smith on January 2, 1992 and opined that he could return to work on January 6, 1992.
The commission was entitled to give greater weight to the opinion of Dr. McAdam, Smith's treating physician, where he was positive in his diagnosis. Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986). Dr. McAdam's records provide credible evidence to support the commission's finding that Smith was able to return to work on January 6, 1992. Moreover, the commission was entitled to discount the opinion of Dr. Garner as it was made pending further diagnostic tests which were not performed, and because, after January 30, 1990, there is no further comment in the record from Dr. Garner regarding disability. Smith did not seek medical treatment from February 7, 1992 through May 19, 1992, and thus there is no medical evidence during this period upon which to base any opinion as to disability. Finally, on May 19, 1992, Dr. McAdam noted that the "detailed neurologic examination, motor, sensory and reflex exam is normal. Peripheral hip, vessel, joint exam is normal." He noted that the CT scan revealed only minimal degenerative changes with no herniated disc and no real nerve root compression. He once again opined that Smith could return to regular work. The credible evidence in the record, as summarized above, supports the commission's finding.
For the reasons stated, we affirm the commission's decision.
Affirmed.