Opinion
Record No. 1547-93-3
December 21, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Michael F. Blair; Ramesh Murthy; Penn, Stuart, Eskridge Jones, on brief), for appellants.
(Gregory R. Herrell; David W. Batchelder, Jr.; Arrington, Schelin Herrell, on brief), for appellee.
Present: Judges Barrow, Koontz 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. As the parties are familiar with the facts, we recite them only as necessary to explain our decision.
Bill Branch Coal Company and its insurer (hereinafter collectively referred to as "employer") contend that the commission erred in finding that Hurdle Ray Cantrell (claimant) was unable to return to his pre-injury work on or about September 15, 1992.
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).
"[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); see also Island Creek Coal Co. v. Honaker, 9 Va. App. 336, 340, 388 S.E.2d 271, 273 (1990). In cases of conflicting medical evidence, "[t]he general rule is that when an attending physician is positive in his diagnosis . . ., 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 denying the employer's change in condition application and finding that the evidence failed to establish persuasively that the claimant was medically able to return to his pre-injury work as an underground coal miner, the full commission stated:
[T]he [claimant] sustained a disabling industrial accident in July, 1988; that the initial diagnosis of herniated disc, initially confirmed by MRI, was not verified by other testing; that Dr. Brasfield, after extensive testing and alternative surgical procedures, decided not to perform a cervical laminectomy and subsequently offered his opinion that the [claimant] did not have objective symptoms which would require laminectomy and that [he] could return to gainful employment. Dr. Brasfield did indicate the need for psychiatric care and the principal treating physician, Dr. Sutherland, and Dr. Scarf and Dr. McKnight have stated that there is continuing psychiatric disability which is total and attributable to the industrial accident. There is contradictory psychiatric opinion by Dr. Kelley that the [claimant's] psychiatric diagnosis is "characterological" and the result of borderline intellectual functioning and not attributable to injury in 1988. We find Dr. Kelley's opinion to be outweighed by other medical evidence.
The full commission considered the reports of all doctors, found that the opinions of treating physician Dr. Sutherland, treating psychiatrist Dr. Scarf, and psychiatrist Dr. McKnight, carried greater weight than the opinion of independent medical examiner Dr. Kelley, and determined that claimant was unable to return to his pre-injury duties. Given its role as fact finder, we cannot say that the commission erred in this determination. The opinions of Drs. Sutherland, Scarf and McKnight constitute credible evidence and are sufficient to support the commission's decision. The existence of "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.