Opinion
Record No. 0036-94-2
Decided: June 28, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(James S. Gilmore, III, Attorney General; William H. Hauser, Senior Assistant Attorney General; Lee Melchor Turlington, Assistant Attorney General, on brief), for appellant.
(Louis D. Snesil; Laura L. Geller; McDonald Snesil, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Hanover Health Department (employer) contends that the Workers' Compensation Commission erred in (1) finding that Betty Fetty Stadnick proved that she sustained a 60% permanent partial disability rating to her right lower extremity as a result of her compensable occupational disease, transverse myelitis; (2) finding a 60% permanent partial disability rating when Stadnick suffers no loss of use or function; and (3) admitting the expert opinion of Dr. Michael J. Decker into evidence. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
I. and II. Permanent Parial Disability Rating
The evidence must be viewed in the light most favorable to Stadnick, the prevailing party before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). Upon appellate review, we will uphold the findings of fact made by the commission if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In agreeing with the deputy commissioner's finding that Stadnick suffered from a 60% permanent partial disability to her right lower extremity, the full commission stated:
The deputy commissioner placed greater weight on the report of Dr. Decker than that of Dr. Jones. Dr. Cohen was the claimant's treating physician and he referred the claimant to Dr. Decker for evaluation, who examined her twice. The independent medical examiner, Dr. Jones, only examined claimant once. The deputy commissioner also relied on Dr. Decker's finding that the claimant did not have normal strength, which was consistent with her complaints of numbness, weakness, and pain. In addition, the deputy commissioner was "impressed by the fact that Dr. Decker documented sensory pain in a greater number of nerves than Dr. Jones."
In cases of conflicting medical evidence, " '[t]he general rule is that when an attending physician is positive in his diagnosis . . ., great weight will be given by the courts to his opinion.' " Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (quoting Bristol Builders' Supply Co. v. McReynolds, 157 Va. 468, 471, 162 S.E. 8, 9 (1932). The commission accepted Dr. Decker's opinion regarding the extent of Stadnick's permanent disability and rejected Dr. Jones's opinion. The commission took into account that Dr. Decker relied, in part, upon a year-old sensory test, but gave more weight to Dr. Decker's opinion because he examined Stadnick twice in 1992 and performed objective tests on her sensory nerves. The commission's determination as to Stadnick's permanent partial disability is binding upon us because it is supported by the reports and Dr. Decker's competent, credible testimony.
Employer also contends that the commission erred in awarding permanent partial disability benefits to Stadnick because she failed to prove an actual loss of functional use of her right lower extremity. Stadnick testified that she experiences constant numbness and intermittent shooting pain and weakness. In addition, she testified that these symptoms limit many of her activities and preclude some activities altogether. Based upon this record, employer's contention that the record failed to prove that Stadnick suffers loss of functional use is without merit.
III. Admission of Expert Evidence
"Medical evidence is not conclusive, but is subect necessarily conclusion The evidence must be viewed in the light most favorable to subject to the commission's consideration and weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 214 (1991). The commission was entitled to determine what weight, if any, to give to Dr. Decker's opinion. Accordingly, we cannot say as a matter of law that the commission erred in admitting or failing to strike the opinion of Dr. Decker.
We find that employer had reasonable, albeit, meritless grounds for appeal. Therefore, Stadnick's request for an award of costs, including attorneys' fees, is denied. For the reasons stated, we affirm the commission's decision.
Affirmed.