Opinion
Record No. 2031-91-1
December 15, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
William W. Nexsen (Ingrid E. Olson; Stackhouse, Rowe Smith, on brief), for appellants.
No brief or argument for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
This appeal is from a determination by the Workers' Compensation Commission that the employee was unable to return to her regular employment and that no basis existed for docketing the employer's renewed application for hearing. We hold that the commission's finding that the employee was unable to return to work was supported by credible evidence, and we affirm this decision. However, we also hold that the commission erred in deciding that no basis existed for docketing the employer's renewed application for hearing, and, accordingly, we reverse this decision of the commission and remand the proceeding to the commission for reconsideration of that issue.
An employer that seeks to terminate an employee's compensation because of the employee's return to work has the burden of proving by a preponderance of the evidence that the employee's physical condition has changed and the extent of that change. J. A. Jones Constr. Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 202, 204 (1956); Telesystems, Inc. v. Hill, 12 Va. App. 466, 472, 404 S.E.2d 523, 526 (1991). In this case, the commission found that the employer failed to meet its burden of proving that the employee could return to her regular employment. The facts underlying the commission's decision are fully described in its opinion. These facts, although conflicting, when viewed in the light most favorable to the employee who prevailed before the commission, are credible and support the commission's finding. Consequently, these findings of fact are binding on this Court. See Code § 65.2-706;James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). The presence of contrary evidence in the record is inconsequential, so long as credible evidence supports the commission's finding. Franklin Mortgage Corp. v. Walker, 6 Va. App. 108, 110-11, 367 S.E.2d 191, 193 (1988) (en banc).
After the deputy commissioner's decision and before the review by the full commission, the employer filed a new application for hearing based upon a new medical report of Dr. Magness dated May 31, 1991. This report was not before the deputy commissioner, nor was it considered by the full commission in its review. In denying the employer's renewed application for a hearing, the commission stated that the application was made "on the basis of Dr. Magness' April 30, 1991 report" and that this report had been part of the record before the deputy commissioner. This was error. The report was dated May 31, 1991, and was not before the deputy commissioner. Because of this error, we reverse the commission's decision refusing to docket the employer's renewed application for hearing and remand the proceeding to allow the commission to reconsider its decision on this question.
Affirmed in part, reversed in part and remanded.