Opinion
Record No. 2515-94-4
Decided: June 27, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(James T. Kimble; Bruce M. Bender; Van Grack, Axelson, Williamowsky Jacobs, on brief), for appellant.
(Michael N. Salveson; Hunton Williams, on brief), for appellees.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Jeanne M. Kersting contends that the Workers' Compensation Commission erred in granting the application of Fairfax County School Board ("employer") to terminate payment of compensation and in finding that Kersting was able to return to her pre-injury work as of August 27, 1993. 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.
On appeal, we view the evidence in the light most favorable to the prevailing party below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[I]t is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review. 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). Moreover, "[m]edical evidence is not necessarily conclusive, but is 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).
Kersting's argument that the commission employed an incorrect standard of review is without merit. The full commission's opinion demonstrates that the commission considered all of the evidence, and it adequately explained the basis for the commission's decision. In addition, Kersting's statement of this Court's standard of review is incorrect. This Court is bound by the commission's factual findings if they are supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
After reviewing the medical evidence, Kersting's testimony concerning her pre-injury job duties, and the job descriptions submitted by the employer, the commission accepted the opinions of independent medical examiners, Drs. Louis Levitt and Richard Sternberg. Drs. Levitt and Sternberg opined that Kersting was able to return to her pre-injury work as a preschool home resource teacher. These physicians found little or no objective basis for the magnitude of Kersting's complaints.
The commission considered the opinions of Drs. Vincent G. Desiderio, Jr. and Raymond D. Drapkin. However, it gave little weight to those opinions. The record supports the commission's finding that the restrictions placed upon Kersting by these physicians did not exceed the physical requirements of Kersting's pre-injury work.
Moreover, the evidence proved that Kersting was able to work part-time in a furniture store, swim, walk, and play tennis. She swam every day in the summer and two to three times per week in the winter. She performed various household chores, drove her children to their activities, and drove in a carpool twice per week. She also was able to perform various volunteer work at her children's schools, attend meetings, and tutor learning disabled children once or twice per week. Although she maintained that she was unable to work in her pre-injury job, Kersting characterized her days as "reasonably" full.
The opinions of Drs. Levitt and Sternberg, along with Kersting's testimony, constitute credible evidence to support the commission's finding that Kersting was able to return to her pre-injury work. "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For the reasons stated, we affirm the commission's decision.
Affirmed.