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FASHION BUG v. PEARSON

Court of Appeals of Virginia
Mar 14, 1995
Record No. 1633-94-4 (Va. Ct. App. Mar. 14, 1995)

Opinion

Record No. 1633-94-4

Decided: March 14, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(R. Ferrell Newman; Glenn S. Phelps; Thompson, Smithers, Newman Wade, on brief), for appellants.

(Wesley G. Marshall, on brief), for appellee.

Present: Judges Baker, Elder and Fitzpatrick


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Fashion Bug and its insurer (collectively referred to as "employer") contend that the Workers' Compensation Commission erred in denying employer's change in condition application when it found that employer failed to prove that Sherry A. Pearson's current disability is unrelated to her compensable accident. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.

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). "General principles of workman'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 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) (citation omitted). Unless employer's evidence proved as a matter of law that Pearson's disability is unrelated to the compensable accident, 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).

Pearson sustained a back injury with L3-4 abnormality in 1988. She received no care for this injury after April 25, 1989. Pearson suffered back and hip injuries on August 17, 1991. Employer accepted the 1991 injuries as compensable, and the commission entered an award memorializing that acceptance. Pearson's treating physician, Dr. Andre Eglevsky, conducted an MRI of the lumbar spine on August 21, 1991, which detected "mild bulging" at the L3-4 and L4-5 levels and "decreased height and signal within the L3-4 and L4-5 interspaces consistent with degenerative change."

Dr. Eglevsky later returned Pearson to work, with restrictions. On April 8, 1993, Pearson aggravated her condition by climbing stairs at work and walking in a park. Because Dr. Eglevsky was unavailable, she sought treatment on April 9, 1993 with Dr. F. Baldwin Harrington. Dr. Harrington recorded a history consistent with Pearson's testimony before the deputy commissioner. In contrast, Dr. Eglevsky, upon seeing Pearson on April 13, 1993, noted that Pearson "sneezed and she went down with a spasm in her back." Dr. Eglevsky ordered another MRI, which revealed a herniated disc at L4-5. Dr. Eglevsky opined that Pearson's ailment was not related to her 1991 compensable injuries.

Dr. Hallett H. Matthews saw Pearson on December 29, 1993. He noted:

We've seen MRI's back in 1991 where she had disc disease at L4-5 with an annular tear and she was to be considered a suspect for progression of disease at that stage. She also had classic L4-5 symptoms at that stage . . . . The disease has been there all along and she has essentially evolved right in front of us and the two year lag does not have anything to do with her actual symptoms, but just of our ability to pick up her disease process.

The record contains no evidence of an MRI being conducted prior to Pearson's 1991 work injury. Thus, we conclude that the MRI referred to by Dr. Matthews was that conducted on August 21, 1991.

The commission specifically found Dr. Eglevsky's testimony "inconsistent" on the subjects of Pearson's recovery from her 1991 injuries and the cause of her 1993 herniation. The commission rejected his opinion as not "reliable or persuasive." In denying employer's application, the commission also stated:

We find no basis in the record for Dr. Eglevsky's conclusion that a sneezing incident produced the herniated disc on April 9, 1993. Rather, the claimant's credible testimony is corroborated by the report of Dr. Harrington on that day that the current injury became manifest while simply walking in a park without accidental event. Dr. Matthews' December 29, 1993 report reasonably explains the progression of the claimant's condition since the accident in 1991 to produce the resultant disc herniation. We also note that Dr. Eglevsky conceded that the claimant's spine was weakened by the occupational accident.

The record contains no evidence that Pearson suffered L4-5 problems prior to the 1991 accident. Instead, the 1991 post-accident MRI revealed disc disease at L4-5. Dr. Matthews notes that Pearson's 1993 condition is a result of the evolution of that disease. The commission, in its role as fact finder, accepted Dr. Matthews' opinion, with the inferences that flow from it, and rejected Dr. Eglevsky's opinion. "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). Accordingly, we cannot say as a matter of law that the commission erred in finding that employer had not met its burden of proving that Pearson's current disability is unrelated to her 1991 injuries.

Affirmed.


Summaries of

FASHION BUG v. PEARSON

Court of Appeals of Virginia
Mar 14, 1995
Record No. 1633-94-4 (Va. Ct. App. Mar. 14, 1995)
Case details for

FASHION BUG v. PEARSON

Case Details

Full title:FASHION BUG AND LUMBERMENS MUTUAL CASUALTY COMPANY v. SHERRY A. PEARSON

Court:Court of Appeals of Virginia

Date published: Mar 14, 1995

Citations

Record No. 1633-94-4 (Va. Ct. App. Mar. 14, 1995)