Opinion
Record No. 0393-93-1
August 10, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Robert A. Rapaport; Knight, Dudley, Dezern Clarke, on brief), for appellants.
(Michael D. Kmetz, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
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.
Ulysses Riddick, Jr. sustained an injury to his lower back while pulling pallets during the course of his employment as a truck driver for Great Coastal Express, Inc. on March 7, 1991. His claim was accepted as compensable and an award was entered on July 11, 1991.
On June 13, 1991, Riddick's employer filed a change in condition application, alleging that Riddick could return to his regular employment as of June 10, 1991, relying on the report of orthopedic surgeon Douglas R. Schreiber. After an evidentiary hearing, the deputy commissioner found that the evidence did not preponderate to show that Riddick was capable of returning to his pre-injury work as a truck driver. The full commission affirmed the deputy's decision, specifically stating that it did not give great weight to Dr. Schreiber's opinion in that the record failed to demonstrate that Dr. Schreiber was familiar with the heavy lifting required of Riddick in his truck driving position.
The employer filed a second change in condition application on January 21, 1992, which is the subject of this appeal. The employer relied on the reports of Dr. Colin Hamilton, orthopedic surgeon, who performed an independent medical examination on Riddick on January 3, 1992 and examined Riddick on January 23, 1992. Dr. Hamilton opined that Riddick did not need further treatment and that he was fit for work as a truck driver.
"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) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)).
Here, the commission did not find Dr. Hamilton's reports persuasive because the evidence failed to demonstrate that he was familiar with the details of Riddick's work as a truck driver. Moreover, the commission found that the case was in the same posture as it was when last before the full commission. At that time, the commission continued compensation upon finding that the employer failed to prove that Riddick was capable of returning to his pre-injury employment.
The commission's decision is supported by credible evidence in the record and will not be disturbed on appeal. Dr. Hamilton's notes and records do not reveal that he was familiar with all of the requirements of Riddick's job, especially the heavy lifting requirements. Additionally, although Dr. Hamilton stated in January 1992 that Riddick was fit for his regular employment, he was still undergoing physical therapy, continued to have complaints of pain, and felt a knot appear in the right thoracic region. In order to prevail, the employer must show that the employee is able to carry out all of the duties of his pre-injury employment. Crystal Oil Co. v. Dotson, 12 Va. App. 1014, 1021, 408 S.E.2d 252, 253-54 (1991) (citation omitted). The commission was entitled to give little weight to Dr. Hamilton's opinion, where as here, the evidence failed to show whether he was familiar with all of Riddick's job duties.
Additionally, the record reveals that in October 1992 Riddick was examined by Dr. Glenn Nichols. At that time, Riddick still complained of low back pain and right leg pain. Dr. Nichols ordered further EMG studies and opined that Riddick could drive a tractor trailer, but should not load or unload cargo. In November 1992, Dr. Nichols reported that the EMG studies showed some abnormality in the paraspinous muscles consistent with a local inflammatory process. Dr. Nichols recommended that Riddick be retrained for sedentary employment.
Upon this record, viewing the evidence in the light most favorable to the claimant, we find that the commission's decision that the employer did not meet its burden of proof is supported by the evidence. Therefore, we affirm that decision.
Affirmed.