Opinion
Record No. 1030-93-4
November 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Susan A. Evans; Siciliano, Ellis, Dyer Boccarosse, on brief), for appellant.
(Peter J. Jones, on brief), for appellee.
Present: Judges Benton, Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Kenbridge Construction Co., Inc. contends that the Workers' Compensation Commission erred in finding (1) that Ralph Molina was not able to return to his regular employment as of April 5, 1991; and (2) that Molina sustained a change in condition rather than a new injury on April 29, 1991. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
On July 10, 1990, Molina sustained a compensable work-related lower back injury for which the commission entered an award. On April 18, 1991, the employer filed an application requesting that compensation be suspended upon the ground that Molina's treating neurologist, Dr. Jeri Carr, had released him to return to work without restrictions as of April 5, 1991.
Employer also filed an application on July 10, 1991, asking the commission to terminate benefits as of April 29, 1991 upon the ground that Molina sustained a new injury on that date. The commission treated this application as a defense to Molina's April 1, 1991 application seeking temporary total disability benefits commencing March 20, 1991.
Molina began medical treatment with Dr. Carr on August 14, 1990. Until April 5, 1991, based upon Molina's subjective complaints of pain and inability to perform physical tasks, Dr. Carr concluded that Molina was incapable of returning to work without restrictions. Dr. Carr released Molina to return to light duty work as of March 25, 1991, with a restriction on lifting and a time limitation of four hours per day. On April 5, 1991, in a letter to the insurance carrier, Dr. Carr indicated that she had reviewed a videotape of Molina repairing a hole in the ceiling of a porch and that she had reviewed the February 15, 1991 report of independent medical examiner Dr. Anthony Debs. Based on this information, Dr. Carr stated that Molina's ability to perform these tasks "suggest[ed]" that he was able to return to work without restrictions.
Based upon his lack of objective findings relating to an orthopedic or neurological problem that would substantiate claimant's subjective complaints, Dr. Debs opined that claimant could return to his pre-injury work without restrictions.
Molina testified that he did not see Dr. Carr between March 20 and April 29, 1991 and that he was unaware of Dr. Carr's April 5, 1991 letter. He returned to light duty work on April 15, 1991 as a supervisor for a landscaping company. He worked part-time, but was unable to work on some days because of lower back and leg pain. On April 29, 1991, he picked up a twenty-two pound weed-eater and, as he twisted to place it on a truck, he felt pain in his back in the same area as the pain he had experienced on July 10, 1990. The pain was the same as he had suffered since the July 10, 1990 incident, but was more severe. However, he had experienced pain of the same severity within a month prior to April 29, 1991.
On April 29, 1991, Molina returned to Dr. Carr for follow-up care. He informed Dr. Carr of the April 29, 1991 incident and he complained of pain radiating from his left buttock to his calf. Dr. Carr noted that she had released Molina to full time work, but that he had re-injured his back. Dr. Carr prescribed bed rest for one week, with an anticipated return to light duty the following week. On May 21, 1991, Dr. Carr noted that Molina had continuing complaints of back pain radiating to the left leg and she referred him to a physiatrist, Dr. Janet Singer.
On May 30, 1991, Dr. Singer reported that Molina should remain out of work for six to eight weeks. In an August 14, 1991 Attending Physician's Report, Dr. Singer related Molina's current disability to the July 10, 1990 accident and opined that he would not be able to return to work until October 30, 1991.
In a June 18, 1991 report, Dr. Lincoln A. German, a chiropractor who had treated Molina from July 11, 1990 to August 15, 1990, noted that his May 6, 1991 examination revealed that Molina suffered from symptoms identical to those he had complained of prior to discontinuing chiropractic care.
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). "Factual findings of the Commission will be upheld on appeal if supported by credible evidence." James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989) (citation omitted).
"General principles of workman's compensation law provide that '[i]n an application for review of an 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) (citation omitted). Unless we can say as a matter of law that the employer's evidence was sufficient to meet this burden of proof, 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).
The commission found that the employer failed to meet its burden of proving that Molina was capable of returning to work without restrictions as of April 5, 1991, and that the April 29, 1991 incident produced a change in condition rather than a new injury. Credible evidence supports the commission's conclusion.
A "suggestion" that Molina could return to work without restrictions on April 5, 1991 is not an unequivocal release to full duty. To prevail, the employer must show that Molina was able to carry out all of the duties of the pre-injury employment. Crystal Oil Co. v. Dodson, 12 Va. App. 1014, 1021, 408 S.E.2d 252, 253-54 (1991). Molina's testimony that he attempted light work between April 15 and 29, 1991, and that he had continuing back pain and was unable to work on some days because of such pain, provides credible evidence supporting the commission's finding that he was unable to return to full employment on April 5, 1991. In light of Molina's unsuccessful attempt to return to work in April 1991, the commission was entitled to discount Dr. Deb's report.
The commission's finding that Molina sustained a change in condition on April 29, 1991 is supported by the medical records of Drs. Carr, Singer and German. On that day, Molina presented to Dr. Carr back and leg complaints essentially identical to those he had complained of from August 1990 until March 1991. Dr. Carr noted that Molina had re-injured his back, but made no objective findings indicating a new injury. Dr. Singer's August 14, 1991 Attending Physician's Report related Molina's current symptoms to his July 10, 1990 accident. Finally, in May 1991, Dr. German noted that Molina was suffering from symptoms identical to those for which he had previously been treated from July 11 through August 15, 1990.
We affirm the commission's decision.
Affirmed.