Billy H. Vance v. Keen Mountain Correctional Center ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BILLY H. VANCE
MEMORANDUM OPINION *
v. Record No. 2604-94-3 PER CURIAM
JUNE 27, 1995
KEEN MOUNTAIN CORRECTIONAL CENTER
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(John M. Heuser; John A. Martin; Browning & Sharp, on
brief), for appellant.
(James S. Gilmore, III, Attorney General; James W.
Osborne, Assistant Attorney General, on brief), for
appellee.
Billy H. Vance contends that the Workers' Compensation
Commission erred in finding that he failed to prove that he was
unable to return to his pre-injury work due to a psychiatric
condition causally related to his March 11, 1991 compensable
injury by accident. 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.
"[I]t 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). In cases of conflicting medical evidence,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"[t]he general rule is that when an attending physician is
positive in his diagnosis . . . , great weight will be given by
the courts to his opinion." McPeek v. P.W. & W. Coal Co., 210
Va. 185, 188, 169 S.E.2d 443, 445 (1969).
"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)). Unless we can say as a matter of law that Vance's
evidence sustained 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 opinion of Dr. Glenn Freeman,
the treating physician, who opined that Vance could not have
"injured his psyche as a result of a fall onto his buttock and
knee." Dr. Freeman did not believe that Vance suffered any
significant psychological stress as a result of the
rehabilitation he was undergoing for his compensable injuries.
Dr. Freeman stated that any psychological problems that Vance was
experiencing were not causally related to his compensable injury
by accident. The commission rejected the contrary opinion of Dr.
Morgan E. Scott, a psychiatrist who examined Vance at the
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employer's request. Two additional psychiatrists who examined
Vance, Drs. Stephen Fulmer and David Forester, did not render an
opinion concerning causation. Dr. Freeman's opinion constitutes
credible evidence to support the commission's decision. "The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
Accordingly, we cannot say as a matter of law that Vance's
evidence sustained his burden of proof. Therefore, the decision
is affirmed.
Affirmed.
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