Opinion
Record No. 0078-92-2
March 30, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
C. Waverly Parker, for appellant.
Daniel E. Lynch (Harris D. Butler, III; Williams, Butler Pierce, on brief), for appellees.
Present: Judges Barrow, Moon and Elder
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal is from a decision of the Worker's Compensation Commission finding that the employer is not responsible for the cost of surgery requested by an employee because the surgery was not a reasonable and necessary medical procedure. We hold that this finding is supported by credible evidence and affirm the decision of the commission.
A detailed recital of the facts of this case and the extensive medical history of the employee is contained in the deputy commissioner's opinion. The employee continues under an award for temporary total disability. Under the terms of this award, the employer is responsible for "all medical expenses as long as necessary." The employee's private physician recommended that she undergo a surgical procedure, anterior cervical discectomy; her treating physician advised against this surgery.
An employee under an award of medical benefits pursuant to Code § 65.2-603 has the burden of proving that "other necessary medical care" should be paid by the employer. Insurance Management Corp. v. Daniels, 222 Va. 434, 438, 281 S.E.2d 847, 849 (1981). The commission, relying primarily on the testimony of the treating physician, found that the employee had not proven that this surgical procedure was necessary.
The commission was entitled to give greater weight to the opinion of the treating physician. See McPeek v. P. W. W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969). Furthermore, contrary to the employee's assertions, the fact that the treating physician's recommendation against surgery was based on his assumption that the employee was not disabled, does not render his opinion unpersuasive. The treating physician's opinion was based on his medical definition of disability; he was not bound by the prior legal determination that the employee was totally disabled. As the deputy commissioner stated:
Dr. Jane [employee's treating physician] qualified his answers many times by stating that he had not found the claimant to be medically disabled and did not believe her to be so. Assuming, arguendo, that she had been found medically disabled by another physician, Dr. Jane indicated that he would have to know the basis of that finding before changing his opinion regarding the advisability of surgery. The claimant is confusing the legal determination of disability . . . with a medical determination. Even if Dr. Jane had agreed that if the claimant were in greater pain than originally thought, and if he himself had determined her to be medically disabled, then he would recommend surgery, we would not be persuaded. The claimant would still be required to take the further step of having Dr. Jane actually make the medical determination that she had experienced an increase in pain, and had become medically disabled, not merely rely on answers to hypothetical questions. The record reflects that he has not evaluated her and has not reached those conclusions.
(emphasis in original.)
Although the medical opinions conflict, the commission's finding is supported by credible evidence and is, therefore, binding upon this Court. Code § 65.2-706. See Goodyear Tire Rubber Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312 (1979); Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). Accordingly, this decision of the Workers' Compensation Commission is affirmed.
Affirmed.