Opinion
Record No. 1034-92-3
April 6, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
H. Ashby Dickerson (Penn, Stuart, Eskridge Jones, on brief), for appellant.
Paul L. Phipps (Wolfe and Farmer, on brief), for appellee.
Present: Judges Baker, Benton, and Coleman.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The sole questions on this appeal are whether credible evidence supports the commission's decision that Ronald L. Whitt proved by a preponderance of evidence a disabling psychiatric change in condition and whether Whitt's psychiatric condition was caused by his industrial accident. Viewing the evidence in the light most favorable to Whitt, the party that prevailed before the commission, Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986), we conclude that the commission's factual findings are supported by credible evidence; accordingly, we affirm the decision.
Whitt, a miner operator, was injured on December 12, 1988, while pulling miner cable. Dr. J. P. Senter, the treating physician, saw Whitt on the day of his initial injury and diagnosed a sprained left costochondral joint. Whitt and Clinchfield Coal Company entered into an agreement approved by the commission to pay Whitt compensation from December 13, 1988 to January 9, 1989. A supplemental memorandum was approved reinstating compensation benefits beginning on January 11, 1989. On June 7, 1989, Dr. Senter wrote a letter to Whitt's counsel stating that, "I initially felt he had a sprain of the costochondral joint but since it never did resolve I felt there was also an element of costochondritis . . . none of these injuries would show on x-rays." Clinchfield paid benefits to Whitt through July 25, 1989, the day before Whitt was to return to work.
On November 9, 1990, Dr. Senter opined that Whitt was totally disabled for employment due to his chronic pain, and Dr. Senter noted findings of depression. Because he detected evidence of depression, Dr. Senter referred Whitt to Dr. Russell D. McKnight, a psychiatrist. Dr. McKnight also diagnosed Whitt as having chronic pain and a psychiatric disability. Alleging a change in condition, Whitt timely filed an application for hearing and requested a reinstatement of benefits effective October 15, 1990. The application was amended to include an issue of unpaid medical bills from Dr. McKnight.
Clinchfield scheduled appointments for Whitt to see Dr. Patel, a psychiatrist, and Dr. Fulmer, a psychologist. Dr. Patel concluded that Whitt's "depression is because of his not being able to work which is secondary to his being laid off rather than the accident itself." Dr. Patel further stated that "from a purely psychiatric point of view" Whitt should be able to return to his previous work. Dr. Fulmer's report was consistent with Dr. Patel's diagnosis and added that, although Whitt was "certainly focusing on his pain complaints as the reason for the psychiatric distress," Whitt was exaggerating his symptoms.
The deputy commissioner found that "a preponderance of the medical evidence establishes that [Whitt] does not have an orthopedic or neurosurgical abnormality that would preclude his returning to and performing his pre-injury employment." The deputy commissioner further found, however, that Whitt "has a psychiatric impairment as a consequence of injuries sustained on December 12, 1988." Thus, the deputy commissioner ordered the payment of weekly compensation benefits commencing November 14, 1990 and continuing until otherwise modified. The deputy commissioner later modified the previous award to the extent of making Clinchfield responsible for Dr. McKnight's treatment.
Clinchfield filed an application for review of the award by the commission. Whitt also filed an application for review, alleging that the deputy commissioner did not properly analyze the medical evidence of Dr. Senter. The commission found that Whitt "has continuing and chronic chest pain from the industrial accident which persists and, although it may be exaggerated, it is not specifically denied by any physician." The commission also concluded that the opinions of Dr. Senter and Dr. McKnight formed a reasonable basis for the claimed change in condition and, thus, the commission affirmed the award. Clinchfield appealed the commission's decision to this Court.
"General principles of work[er's] compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove [the] allegations by a preponderance of the evidence.'" Great Atlantic Pacific 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). Moreover, when an appeal is taken from the commission's grant of an award, the commission's findings of fact are binding on this Court if those findings are supported by credible evidence. Code § 65.2-706(A). Furthermore, when this Court reviews the record, "[t]he fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's findings."Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). The record in this case is replete with credible evidence supporting the commission's findings.
Both Dr. Senter and Dr. McKnight, the treating physicians, have consistently and unequivocally related Whitt's chronic pain and his depression to the industrial accident. In a letter dated January 16, 1991, Dr. Senter wrote:
[Whitt's] condition has turned out to be chronic and he continues to have pain in the same area. Consequently he has gotten depressed secondary to the injury. . . . I feel his depression should be included in the compensation since his depression is secondary to his chronic pain and inability to work.
A month later, Dr. Senter wrote:
I feel that [Whitt's] continued pain and disability stem from the initial accident of 12-12-88. He has pain in the same area with the same symptoms.
Dr. Senter treated Whitt in excess of thirty times after Whitt's initial visit on the day of his industrial accident.
After Dr. Senter referred Whitt to Dr. McKnight, Dr. McKnight reported the following:
As a result of [Whitt's industrial injury on 12/12/88] and subsequent chronic pain he has become progressively more depressed and despondent. When he was first seen on November 14, 1990 he appeared to be suffering from a severe dysthymic disorder secondary to his invalidism and loss of status as a competitive worker. . . . In my opinion, at the present time he is not suitable for competitive employment due to his chronic pain and psychiatric disability. In my opinion, his disability is causally related to the industrial accident on 12/12/88.
The commission considered the entire record, including "the orthopedic and neurologic medical opinions together with the psychiatric opinions." After reviewing the evidence, the commission concluded that Whitt continued to suffer chronic chest pain that was "a residual effect of the original accident." The commission noted that Whitt's pain may have been exaggerated, but also found that Whitt's pain "was not specifically denied by any physician." The commission relied heavily on the opinions of the treating physicians, Dr. Senter and Dr. McKnight, in finding a reasonable basis for Whitt's claim that he experienced a change in condition. Moreover, the commission made specific reference to the reports from Dr. Patel and Dr. Fulmer. The general rule is that the treating physician's diagnosis is given great weight.Reeves, 1 Va. App. at 439, 339 S.E.2d at 572. The commission implicitly rejected contrary medical evidence. As the trier of fact, the commission was free to do so.
Having resolved in favor of Whitt the conflict in evidence whether his disability was related to his 1988 industrial accident, the commission made findings based on credible evidence. Those findings are binding on this court. "A finding based upon conflicting expert medical opinions is one of fact which cannot be disturbed." Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985). Accordingly, we affirm the decision of the commission.
Affirmed.