Opinion
Record No. 2434-92-4
April 27, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Thomas G. Bell, Jr.; Timberlake, Smith, Thomas Moses, on brief), for appellant. Appellant submitting on brief.
(Kathleen G. Walsh; Ashcraft Gerel, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Merillat Industries, Inc. ("Merillat") appeals from a decision of the Workers' Compensation Commission, reversing the opinion of the deputy commissioner, and denying its application alleging a change in condition. Merillat contends that the commission erred in finding that Sandra Ann Stoneberger could not return to her pre-injury employment as of March 19, 1992. We find no error and affirm the commission's decision.
Stoneberger injured her back on July 6, 1988 while working for Merillat as a veneer drying oven offbearer. Merillat accepted her claim as compensable. Compensation was paid to Stoneberger pursuant to various awards for disability at intermittent periods of time since the injury. Merillat filed its application alleging a change in condition on March 26, 1992 asserting that Stoneberger was able to return to her pre-injury employment as of March 19, 1992, the date upon which her treating orthopedist, Dr. Thomas W. Daugherty, approved of a job description for a "veneer drying oven-offbearer" submitted to him by the employer.
On appellate review, we will 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). Findings of fact made by the commission are binding and conclusive on appeal when supported by credible evidence.Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986) (citations omitted). "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)).
In holding that Merillat failed to meet its burden of proving that Stoneberger was able to return to her pre-injury employment, the commission, in its November 6, 1992 opinion stated:
The job description provided to Dr. Daugherty set forth the duties of the claimant's preinjury employment. However, it is clear from her testimony, as well as that of [Brad] Neher [Merillat's safety coordinator], that this work involves much more than "minimal" bending and reaching. While the weight of each stack of veneer may be left to the discretion of the employee in theory, we find from the record that in order to keep up with the drying oven, the offbearer must place the veneer in stacks of some 40 to 60 pieces each. Moreover, given the estimated weight of eight ounces per piece, the weight of each stack would vary between 20 and 30 pounds. This alone exceeds the 19-pound lifting limit noted in the job description. Repeated twisting is also involved in moving the dried stacks of veneer to a nearby table. Finally, the employer could have resolved the issue of the claimant's ability to work by offering this or any other medically approved job to her. We find upon Review that the record, taken as a whole, does not establish that she can return to her preinjury employment.
We find that there is substantial, competent, and credible evidence to support the commission's finding of fact that the job description provided to Dr. Daugherty was inaccurate. The testimony of Stoneberger and Neher constitute such evidence. Stoneberger testified that the lifting involved in the job exceeded the limit approved of as stated in the job description. Additionally, her testimony established that she was required to reach across a four-foot conveyor belt approximately two times per minute during her eight hour shift. She was then required to pick up a stack of veneer and turn and place it on a table. Neher, who prepared the job description from his recollection of the job as it existed four years prior, testified that, in noting that the job required only "minimal" bending and reaching, he was referring to overhead or low-level work, but not reaching across the conveyor belt as described by Stoneberger and him. The job description states that only "minimal" bending and reaching are required.
Dr. Daugherty's opinion that Stoneberger was able to return to her pre-injury employment was based on the job description given to him by the employer. The commission found that the job description used by the doctor was inaccurate. We are bound by that finding. Accordingly, we cannot say as a matter of law that the commission erred in finding that Merillat failed to meet its burden of proving that Stoneberger was able to return to her pre-injury employment as of March 19, 1992.
Affirmed.