Opinion
Record No. 2503-92-4
December 14, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Michael E. Canode (Bonde, Conte Norman, P.C., on brief), for appellant.
Francis G. Marrin (Law Offices of Conrad A. Fontaine, on brief), for appellees.
Present: Chief Judge Moon, Judge Elder and Senior Judge Duff.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Caroline Baum appeals from the Workers' Compensation Commission's denial of benefits. On appeal, she contends that (1) the commission erred in finding that she was not totally disabled after November 20, 1991, based on the opinions of Drs. Anderson, Calvert, and Shaffer, which the commission accepted over the opinion of her treating physician, Dr. Stabile; and (2) the commission erred in finding that she failed to meet her burden of proving that she had made a reasonable attempt to market her residual work capacity after November 20, 1991. For the reasons set forth below, we affirm the ruling of the commission.
I.
"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). Upon appellate review, decisions of the commission as to questions of fact are conclusive and bidding upon this Court if supported by credible evidence. Code § 65.2-706(A); see Manassas Ice Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). We must view the evidence in the light most favorable to the prevailing party below, and "[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Manassas, 13 Va. App. at 229, 409 S.E.2d at 826.
Although we have stated that the opinion of the treating physician is entitled to great weight, 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)) (other citations omitted), the commission is not required to accept the treating physician's opinion over the opinions of others. Where, as here, the treating physician's diagnosis is shaded by doubt and there is expert medical opinion contrary to the treating physician's opinion, "the trier of the fact is left free to adopt that view which is most consistent with reason and justice." McPeek, 210 Va. at 188, 169 S.E.2d at 445. Accordingly, the commission was free to accept the opinions of Drs. Anderson, Calvert and Shaffer over that of Dr. Stabile. Their opinions, along with the evidence of Baum's own activity level in connection with the Ladies' Auxiliary of the local fire department, constitute credible evidence to support the commission's determination that Baum was not totally disabled after November 20, 1991.
II.
The commission did not err in finding that Baum failed to present evidence that she made a reasonable effort to market her remaining work capacity. To prove her entitlement to benefits, Baum was required to demonstrate that she made a reasonable effort to procure suitable work but was unable to market her remaining work capacity. Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 463-64, 359 S.E.2d 98, 100-01 (1987). Baum presented no evidence of any marketing effort, other than her one-day aborted attempt to return to work as a greeter for her employer in March 1992. Therefore, we cannot say the commission erred in finding that Baum failed to meet her burden of proving that she marketed her remaining work capacity after November 20, 1991.
Baum argues that she should not be required to look for alternate work because she was never informed by her treating physician that her disability was only partial. However, inRidenhour v. City of Newport News, 12 Va. App. 415, 416, 404 S.E.2d 89, 89 (1991), we held "that it is not required that a workers' compensation claimant who suffers partial disability be informed by his physician that he may undertake restricted work in order for him to be obligated to make reasonable efforts to market his residual skills." Baum failed to demonstrate that she made any meaningful attempt to market her residual capacity after November 20, 1991. Additionally, she failed to present evidence sufficient for the commission to conclude that, in light of the facts and surrounding circumstances, her efforts to market her residual skills were reasonable. Id. at 418, 404 S.E.2d at 90-91 (holding that an analysis of the reasonableness of a claimant's efforts to market residual skills "would necessarily include consideration of the claimant's perception of his condition, his abilities, and his employability, and of the basis for the perception").
For the aforementioned reasons, we affirm the decision of the commission.
Affirmed.