From Casetext: Smarter Legal Research

Whiting Turner Cont. v. Johnson

Court of Appeals of Virginia
Sep 27, 1994
Record No. 0379-94-4 (Va. Ct. App. Sep. 27, 1994)

Opinion

Record No. 0379-94-4

Decided: September 27, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(Lisa C. Healey; Siciliano, Ellis, Dyer Boccarosse, on brief), for appellants.

(Michael W. Heaviside; Ashcraft Gerel, on brief), for appellee.

Present: Judges Barrow, Koontz and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Whiting Turner Contracting Company and its insurer (hereinafter collectively referred to as "the employer") contend that the Workers' Compensation Commission erred in denying its application seeking termination of John Johnson's compensation benefits on the basis that the employer failed to prove the employee had been released to return to his pre-injury employment without restrictions. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.

On appellate review, we 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).

"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 condition to prove his allegation 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). "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).

The commission found that the employee had not been released to full duty by Dr. Manfreds Munters, the treating physician. Dr. Munters's medical records provide credible evidence to support this finding. On June 14, 1991, Dr. Munters wrote to the insurance carrier for employer. He opined that the employee was not "ready to return to full work as a heavy laborer and physically demanding construction type work." This is the last report in the record from Dr. Munters. As the treating physician, Dr. Munters's opinion was entitled to be given great weight by the commission. See Reeves, 1 Va. App. at 439, 339 S.E.2d at 572.

Moreover, although Drs. Christian T. Anderson and Stephen R. Shaffer, the independent medical examiners chosen by the employer, opined that the employee was capable of returning to his pre-injury work, there is no evidence that they were provided with a job description detailing the employee's pre-injury work as a construction worker or were otherwise made aware of all the duties involved in his pre-injury work. In addition, on October 26, 1992, Dr. Albert C. Casabona, an orthopedic surgeon in practice with Drs. Anderson and Shaffer, examined the employee. He opined, in conflict with Drs. Anderson and Shaffer, that the employee was only capable of returning to light work with no repetitive bending and no lifting over twenty-five pounds. The employee's pre-injury job as a construction worker required repetitive bending and frequent lifting of at least forty-five pounds.

Based upon this record, and given its role as fact finder, we cannot say that the commission erred in rejecting the opinions of Drs. Anderson and Shaffer, and in finding that the employer failed to meet its burden of proving that the employee was capable of performing all of his pre-injury job duties. See Crystal Oil Co. v. Dodson, 12 Va. App. 1014, 1021, 408 S.E.2d 252, 253-54 (1991).

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

Whiting Turner Cont. v. Johnson

Court of Appeals of Virginia
Sep 27, 1994
Record No. 0379-94-4 (Va. Ct. App. Sep. 27, 1994)
Case details for

Whiting Turner Cont. v. Johnson

Case Details

Full title:WHITING TURNER CONTRACTING COMPANY AND LIBERTY MUTUAL FIRE INSURANCE…

Court:Court of Appeals of Virginia

Date published: Sep 27, 1994

Citations

Record No. 0379-94-4 (Va. Ct. App. Sep. 27, 1994)