Opinion
Record No. 0606-93-4
September 14, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Michael W. Heaviside; Ashcraft Gerel, on brief), for appellant.
(Nancy Repa Toker; Wochok, Robertson Notarius, on brief), for appellees.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Luis F. Gomez contends that the Workers' Compensation Commission erred in finding that he failed to prove that (1) he had remained totally disabled since August 1, 1991, as a result of his August 20, 1990, industrial accident; and (2) his cervical complaints are causally related to his industrial accident. Upon reviewing the record and the parties' briefs, we hold that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
Gomez, a sixty-one year old laborer, slipped and fell at a construction project on August 20, 1990, sustaining injuries to his left shoulder, head, right side and low back. He immediately came under the care of Dr. Eduardo Haim. Dr. Haim stated, in his October 18, 1990, letter to the insurance carrier, that he diagnosed Gomez to have left shoulder strain and possible rotator cuff tear. Dr. Haim related that Gomez was kept out of work from August 21, 1990, to October 1, 1990. His report reflects that, on September 18, 1990, he told Gomez to begin regular duties as of October 1, 1990, and to return for treatment only if needed. Dr. Haim's records did not mention cervical complaints.
Gomez never returned to Dr. Haim after September 18, 1990. Gomez continued to work as a laborer from September 1990 until May 1991, when he was laid off from his job due to economic reasons. Gomez's supervisor, William "Gus" Arnold, testified that during this period of time Gomez did not tell him of any restrictions on his work and did not complain of pain or of being unable to perform his work. In fact, Gomez approached Arnold in June and July 1991 asking for a job on the company's new project.
On October 10, 1991, Gomez was examined by orthopedic surgeon Stanford A. Lavine. Dr. Stanford Lavine's record indicates that Gomez told him that he had been unable to work since one week after the August 20, 1990 injury. At that time, Dr. Stanford Lavine did not express any opinion as to whether Gomez was able to work. On December 24, 1991, Dr. Stanford Lavine noted that an arthrogram had revealed a torn rotator cuff and that x-rays had revealed degenerative changes in Gomez's cervical spine. Dr. Lavine opined that these conditions would impair Gomez's lifting ability, but he would not be otherwise restricted.
On June 15, 1992, Gomez was examined by Dr. Randall J. Lewis at the request of the carrier. Dr. Lewis related that Gomez told him he had been unable to work since the original injury. Dr. Lewis reported that in his opinion, Gomez would be unable to work as a laborer, but Lewis gave no opinion as to whether Gomez could perform light duty work. Significantly, Lewis opined that Gomez had a 23% impairment of the upper extremity. However, on June 16, 1992, Dr. Peter E. Lavine recommended physical therapy for claimant's shoulder pain and stated that, in the initial rehabilitation stage, Gomez would be restricted to light duty.
The commission found that Gomez had failed to prove that he had remained totally disabled from December 1991 to present. On appellate review, we construe the evidence in the light most favorable to the prevailing party. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The commission's findings of fact are conclusive 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) (citing Code § 65.1-98). Unless Gomez proved as a matter of law that he was totally disabled after August 1, 1991, to the present, 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). "Questions raised by conflicting medical opinions 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). Substantial credible evidence supports the commission's finding, and we will not disturb it on appeal.
Dr. Haim had released Gomez to return to his pre-injury employment on September 18, 1990, and Gomez had returned and performed that work until he was discharged due to economic conditions in May 1991. Although Dr. Peter Lavine stated on June 9, 1992 that Gomez had been unable to work since the original injury, his statement was based on the history that Gomez gave him, which was inconsistent with the fact that Gomez had returned to work. On June 9, 1992, Dr. Peter Lavine ordered six weeks of physical therapy for Gomez. He reported on June 16, 1992, that Gomez could perform light duty work. No medical evidence proves as a matter of law that Gomez was totally disabled after August 1, 1991, until the time of his hearing. Accordingly, the commission did not err in finding that Gomez failed to prove that he remained totally disabled since coming under the care of Dr. Stanford Lavine. See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).
Credible evidence also supports the commission's finding that Gomez's cervical complaints are not related to the work-related injury. "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) (citing Code § 65.1-98). No mention is made in Gomez's medical records of cervical complaints until almost sixteen months after the industrial accident. The CT scan of Gomez's cervical spine revealed only degenerative disc changes which Dr. Lewis opined were not related to the accident. The commission, as fact finder, was entitled to accord more weight to the opinion of Dr. Lewis than to the opinion of Dr. Stanford Lavine, especially in light of the large gap in time between the date of injury and when Gomez first complained of neck pain.Penley, 8 Va. App. at 318, 381 S.E.2d at 236.
For the reasons stated, we affirm the commission's decision.
Affirmed.