Opinion
Record No. 0973-93-4
September 28, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Roger L. Gregory; M. Janet Palmer; Wilder Gregory, on brief), for appellant. Appellant submitting on brief.
(Peter M. Sweeny, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
GM Powertrain (employer) appeals from a decision of the Workers' Compensation Commission denying its application alleging a change in condition and awarding temporary total disability benefits to Mary J. Cherry (claimant) commencing July 17, 1992 and continuing. Employer contends that the commission erred: (1) in finding claimant's failure to return to light work and attend an independent medical examination justified; and (2) in considering the medical records of claimant's psychiatrist, Dr. Bradford Lyles, as rebuttal evidence regarding claimant's ability to return to work. We find no error and affirm the commission's decision.
Claimant injured her right thigh and hip on February 27, 1992 while working for employer as a binder operator. Employer accepted her claim as compensable and temporary total disability benefits were paid to claimant until July 15, 1992. On July 13, 1992, claimant met with the employee benefits representative, Jane McManious, to discuss her return to work. Ms. McManious told claimant that an independent medical examination had been scheduled for her on July 20, 1992, a period when the company was closed for vacation. Claimant asked if she had to attend the examination and she was told that she was required to go "if she was not working."
On July 15, 1992, claimant returned to work in a light duty position. Claimant worked a portion of her scheduled shifts on July 15 and 16, 1992. On both days she complained of leg pain. Claimant called in sick on July 17, 1992, and was seen by her treating orthopedist, Dr. F. Baldwin Harrington, Jr., for increased pain. Dr. Harrington noted that claimant had continuing leg pains and that she attempted to perform her job but found it beyond her capabilities due to the pain.
From July 20 through August 2, 1992, the plant was closed for an annual vacation shut-down. On August 4, 1992, claimant tried to return to work. Between August 5 and 10, 1992, claimant was under the care of Dr. Desiderio Hebron, Jr., whose records indicate she was incapable of working during this period. On August 10, 1992, Dr. Hebron released claimant to return to work, but recommended that she have a psychiatric follow-up.
Thereafter, claimant was treated by Dr. Lyles, whose records show a diagnosis of major depression resulting from the stress of claimant's work injury. Dr. Lyles' Attending Physician's Report, dated October 22, 1992, indicates that claimant was disabled from work commencing July 17, 1992 and continuing.
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). Findings of fact made by the commission are binding and conclusive upon appeal when supported by credible evidence.James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). "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) (citations omitted).
In denying the employer's application, the commission found that Dr. Lyles' medical records established that claimant continued to be disabled from work due to emotional problems caused by her industrial injury from July 17, 1992 and continuing. The commission's finding is supported by credible evidence consisting of claimant's testimony and Dr. Lyles' medical records. The commission also found that claimant was justified in her confusion as to whether she should report for the independent medical examination. This finding is supported by credible evidence and will not be disturbed on appeal. Claimant was specifically instructed by Ms. McManious that she did not need to attend the medical examination if she was working. The record reveals that claimant was working on July 15 and 16, 1992, prior to the annual plant shut-down. Thus, she could have reasonably believed that she did not need to attend the examination.
Finally, we find no merit in the employer's contention that the commission should not have considered Dr. Lyles' reports. On August 25, 1992, two months prior to the hearing, claimant provided a copy of one of Dr. Lyles' reports to the commission and to the employer's counsel. Accordingly, the employer had sufficient time to develop cross-examination of Dr. Lyles or to obtain its own psychiatric evaluation of claimant. Employer failed to take such action in a timely fashion.
For the reasons stated, we affirm the commission's decision.
Affirmed.