Opinion
Record No. 0354-93-2
October 26, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Geoffrey R. McDonald for appellant.
Joseph C. Veith, III (Montedonico, Hamilton Altman, P.C., on brief) for appellees.
Present: Judges Barrow, Benton, and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
William C. Schwinghammer suffered a work-related injury to his back but continued to perform his job. After he was terminated by Dynalectric Company for economic reasons, Schwinghammer aggravated the earlier back injury. Schwinghammer contends that no credible evidence supports the Workers' Compensation Commission's finding that his injury would not have prevented his return to his regular employment duties. We affirm the commission's decision.
The evidence proved that when Schwinghammer slipped and fell, he was employed by Dynalectic as project manager and superintendent. Although Schwinghammer experienced some pain in his back, he continued to work. A month after he fell, Schwinghammer first saw a physician because of continuing discomfort in his back. The physician prescribed medication and physical therapy and discharged Schwinghammer from treatment two months later.
The evidence in the record proved that after Schwinghammer fell, he continued to work without interruption until he was terminated for economic reasons sixteen months after his fall. During the course of his medical treatment, Schwinghammer continued to work. The commission found as a fact that Schwinghammer's injuries were not disabling.
Schwinghammer testified that in July 1991, several months after he was terminated from employment, he experienced pain while reaching for an object. He visited his doctor two months after that incident and began a course of treatment. Schwinghammer's doctor limited his activities to include "no lifting over 10 pounds; no overhead work; ability to alter his sitting and standing with no standing more than 30 minutes at one time."
Schwinghammer filed an application for temporary total disability benefits beginning July 1, 1991, and continuing. The deputy commission found that Schwinghammer did not suffer a disability as a result of his fall. That finding was upheld on review by the commission. The commission found from the evidence that the medical restrictions that Schwinghammer's doctor imposed after the 1991 incident could have been accommodated within Schwinghammer's job. Thus, the commission agreed that Schwinghammer had not proved disability, and the commission awarded medical benefits only. Schwinghammer contends on appeal that his job as project manager and superintendent involved a significant amount of walking and climbing which was incompatible with his doctor's limitation regarding physical activity.
"It is an established rule that a decision of the Commission as to a question of fact, if supported by credible evidence, is conclusive and binding on this Court." McCaskey v. Patrick Henry Hospital, 225 Va. 413, 415, 304 S.E.2d 1, 2 (1983). "[T]hat contrary evidence may be in the record is of no consequence if there is credible evidence to support the Commission's findings." Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986).
Credible evidence in the record proved that in his capacity as project manager and superintendent, Schwinghammer could have delegated tasks involving physical activities and otherwise structured his work day so as to alleviate any unnecessary physical strain. Indeed, Schwinghammer himself stated in a letter that he "was virtually [his] own boss on the job site." Moreover, the testimony by the assistant vice-president of Dynalectric fully supports the commission's finding that Schwinghammer had the authority and discretion to determine his own duties.
This evidence was sufficient for the commission to find that Schwinghammer's pre-injury employment was such that he had control over how much physical exertion was required. The commission could have reasonably found from the evidence that if Schwinghammer had the authority to limit his own physical activity, he could tailor his job to meet his physical limitations. Schwinghammer noted that after the fall he had already, "by trial, pain, and error," discovered what he could and could not do on the job.
Although some of the evidence concerning the nature of Schwinghammer's pre-injury employment was conflicting, this Court is bound to review the record for the existence of credible evidence supporting the commission's finding. We cannot retry the evidence as a fact finder. Code § 65.2-706. Upon our review, we conclude that the record contains ample credible evidence that Schwinghammer had the physical ability to resume his pre-injury employment.
Affirmed.