Opinion
Record No. 0143-94-2
Decided: October 4, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
C. Ervin Reid (Wright, Robinson, McCammon, Osthimer Tatum, on briefs), for appellant.
Brooke Calabrese Winker (Buxton, Lasris Vannan, on brief), for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Manpower Temporary Service and Continental Casualty Co., referred to collectively as employer, appeal the Workers' Compensation Commission's denial of their application for suspension of disability benefits owed to Michelle R. Williams, employee. Employer contends the commission erred in holding the evidence insufficient to show that the employee had been released to pre-injury employment. For the reasons that follow, we affirm the commission's decision.
Employee reported having injured her wrist on the job on May 26, 1992, while picking up two boxes weighing about forty pounds. She received disability benefits pursuant to a memorandum of agreement. On April 5, 1993, the treating physician, Dr. Gwathmey, released employee to return to work, but for only four hours per day. Gwathmey's office notes for that day contain no indication of any lifting restrictions. On May 4, 1993, Gwathmey released employee to return to work without restriction, stating that "[h]er job description is within the limits outlined by therapy. . . . It has no lifting of over 25 lbs." In May, 1993, Gwathmey approved a job description of employee's duties as a picker. Although the description itself is printed, it contains a handwritten notation to the effect that a picker "will lift no more than 25 lbs at one time." The description contains no indication as to who added this restriction or when it was added. On May 20, 1993, employer requested a suspension of benefits based on employee's release to pre-injury employment.
The deputy commissioner denied employer's request for termination of benefits on the ground that employee's release to work was qualified by a lifting limitation and therefore did not constitute a release to pre-injury employment. The full commission affirmed this decision on the ground that employer failed to meet its burden of proving that employee was able to return to pre-injury employment.
In reviewing employer's challenge to the sufficiency of the evidence, we are guided by several principles. First, the burden before the commission was on the employer, as the party alleging the change in condition, to prove it by a preponderance of the evidence. Pilot Freight Carriers v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986). Second, decisions of the commission as to questions of fact are conclusive and binding upon this Court if supported by credible evidence. Code Sec. 65.2-706; Manassas Ice Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). Finally, we must view the evidence in the light most favorable to the employee, as the prevailing party below, and "[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Manassas, 13 Va. App. at 229, 409 S.E.2d at 826.
We hold that the record contains sufficient credible evidence to support the commission's findings. Viewed in the light most favorable to the employee, the evidence fails to show that the employee was released to return to her pre-injury employment because the evidence fails to establish the limits of that employment. Although employer submitted a description of employee's job signed by a company official in 1988, the preprinted portion of that description contains no lifting restrictions. The document contains a twenty-five pound lifting restriction that had been added by hand, but employer provided no evidence as to when or by whom this restriction was added. Although employer relies heavily on Gwathmey's notes, Gwathmey's understanding of employee's job description is not dispositive.
Finally, we agree with employee that the assertion of employer's claims representative, in the employer's sworn application for hearing, that this restriction was contained in employee's original job description, is of no evidentiary value.
Because the evidence was insufficient to establish the limits of employee's pre-injury employment, employer was unable to meet its burden of showing that employee had been released to return to that employment.
For these reasons, we affirm the decision of the commission.
Affirmed.