Opinion
Record No. 0292-93-3
September 14, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Paul D. Monk, pro se, on briefs).
(Michael F. Blair; Penn, Stuart, Eskridge Jones, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Paul Monk contends that the commission erred in denying his April 1, 1992 application for a change in condition by finding that the medical evidence failed to show that he was again totally disabled as a result of his September 29, 1989 accident.
"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) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)).
Furthermore, "it 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) (citations omitted). "Medical 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) (citation omitted). Unless we can say, as a matter of law, that Monk's evidence was sufficient to meet his 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 accepted the opinions of Dr. Glenn J. Freeman, the treating orthopedic surgeon, and Dr. Jim C. Brasfield, the treating neurologist, that Monk was not disabled and was capable of returning to his regular work. The commission rejected the contrary opinions of Dr. Christa U. Muckenhausen and Dr. Charles S. Scharf. As stated by the commission, Drs. Freeman and Brasfield "have consistently been of the opinion since June 1991 that the claimant is not disabled based on a near absence of objective findings." These opinions constitute credible evidence to support the commission's finding regarding disability.
It is noted that the commission discounted Dr. Muckenhausen's opinion because it was based entirely on Monk's subjective complaints. Moreover, she noted the same lack of objective findings attributable to the accident as the other physicians.
For the reasons stated, we affirm the commission's decision.
Affirmed.