Opinion
Record No. 1435-93-3
November 30, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Gerald F. Sharp; Browning, Morefield, Lamie Sharp, on brief), for appellant.
(Michael F. Blair; Penn, Stuart, Eskridge Jones, 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 of the case, we recite them only as necessary to explain our decision.
Diane H. Fuller (claimant) contends that the commission erred in denying her application alleging a change in condition on the basis that (1) her psychiatric problems were not causally related to her March 8, 1990 industrial accident; and (2) she was not totally disabled as a result of her psychiatric problems.
"The actual determination of causation is a factual finding that will not be disturbed on appeal if there is credible evidence to support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). On appeal, 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) (citing Code § 65.1-98). Unless claimant proved as a matter of law that her psychiatric problems were caused by the March 8, 1990 accident and that she was totally disabled after January 17, 1992, 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 determined that claimant suffered from mild depression which was not causally related to the March 8, 1990 accident. Credible evidence supports this finding, and it will not be disturbed on appeal.
The full commission earlier ruled that claimant's pain and disability resulted from her February 1991 surgery rather than her March 1990 accident. Fuller v. Island Creek Coal Co., No. 145-28-72 (Va. Workers' Comp. Comm'n Feb. 28, 1992). This ruling was not appealed by claimant. Therefore, any psychiatric condition caused by the surgery would likewise be unrelated to the March 1990 accident.
Furthermore, Dr. Paul R. Kelley, psychiatrist, opined that claimant's March 1990 injury was not the cause of her emotional problems. He stated that, from a psychiatric standpoint, claimant was not impaired from performing any type of work. Moreover, claimant admitted to Dr. Kelley that her psychiatric problems did not begin until after her surgery.
The commission rejected the contrary opinions of Drs. James Eden and Stephen Fulmer regarding causation. "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). "Questions raised by conflicting medical opinion must be decided by the commission." Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989) (citation omitted).
Assuming arguendo that a causal connection was proven, Drs. Arthur C. Ballas, Shelle G. Dietrich and Kelley did not find that claimant was totally disabled as a result of her psychiatric problems, nor did the evidence demonstrate that she made any effort to market her residual capacity.
For the reasons stated, we affirm the commission's decision.
Affirmed.