Opinion
Record No. 2420-92-3
August 10, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Gregory R. Herrell; Arrington, Schelin Herrell, on brief), for appellant.
(Regina Maria Policano; Midkiff Hiner, on brief), for appellees.
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.
Joyce G. Cantrell contends that the commission erred in finding that she is only partially disabled and in denying her benefits on the basis that she failed to market her residual work capacity.
Cantrell sustained a back injury while working as a cook for Tazewell County Schools on March 13, 1989. Her claim was accepted as compensable by the employer and an award was entered in her favor on May 12, 1989. By opinion dated September 5, 1990, the deputy commissioner found that Cantrell was released by her treating physician, Dr. Glenn Freeman, to return to her pre-injury job as of December 4, 1989. The deputy commissioner terminated Cantrell's temporary total disability benefits on December 19, 1989. This decision was affirmed by the full commission. On November 6, 1991, Cantrell filed an application based upon a change in condition asserting total disability from work and requesting a reinstatement of benefits, relying upon the medical reports of psychiatrists Nasreen Dar and Russell McKnight. The commission denied the application.
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).
"General principles of workman's compensation law provide that '[i]n an application for review of an award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.'" Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Unless we can say as a matter of law, that Cantrell's evidence was sufficient to meet her burden of proof, the commission's findings are binding and conclusive upon us.Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission accepted the opinions of Drs. Freeman, J.P. Sutherland, Jr., Marc A. Aiken, Matthew W. Wood, Jr., John C. Willis and Ashvin A. Patel, the independent psychiatrist, that Cantrell was not totally disabled from all types of gainful employment, and rejected the contrary opinions of other psychiatrists. "[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). "Medical evidence is not necessarily conclusive, but is subject to the commission's consideration and weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991) (citation omitted).
The medical records and opinions of Drs. Freeman, Sutherland, Aiken, Wood, Willis and Patel constitute credible evidence to support the commission's finding regarding the disability issue. "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).
To prove her entitlement to benefits, Cantrell must 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., 4 Va. App. at 464, 359 S.E.2d at 100. There is no evidence in the record that Cantrell made any effort to market her residual work capacity after February 1990. Accordingly, we cannot say that the commission erred in denying her benefits on the basis that she failed to market her residual work capacity.
Cantrell argues that the commission erred in requiring her to look for work consistent with her residual capacity when she relied upon medical reports that stated she was unable to work. However, Cantrell failed to demonstrate any meaningful attempt at marketing her residual work capacity after February 1990, even though she admitted in deposition testimony that she was aware that Drs. Freeman, Sutherland, Wood and Aiken had released her to perform light work. The only action she took in response to this knowledge was to inquire of the school system as to whether there were any light duty positions available for her. When told that nothing was available, she made no further effort to find employment within her remaining work capacity. 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. Ridenhour v. City of Newport News, 12 Va. App. 415, 418, 404 S.E.2d 89, 90-91 (1991) (an analysis 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 the basis for that perception").
For the reasons stated, we affirm the commission's decision.
Affirmed.