Douglas E. Davis v. Saville Peninsula Produce ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
DOUGLAS E. DAVIS
v. Record No. 1908-94-1 MEMORANDUM OPINION *
PER CURIAM
SAVILLE PENINSULA PRODUCE MAY 2, 1995
AND
MARYLAND CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert J. Macbeth, Jr.; Rutter & Montagna, on brief),
for appellant.
(P. Dawn Bishop; Sands, Anderson, Marks & Miller, on
brief), for appellees.
Douglas E. Davis (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that (1)
Saville Peninsula Produce (employer) met its burden of proving
that claimant was able to return to his pre-injury work as of
August 23, 1993, and (2) employer's October 12, 1993 change in
condition application was not barred by the doctrine of res
judicata. 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 appeal, we view 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. 788, 788 (1990). Factual
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
findings of the commission will not be disturbed on appeal, if
based on credible evidence. Hercules, Inc. v. Gunther, 13 Va.
App. 357, 361, 412 S.E.2d 185, 187 (1991).
In reversing the deputy commissioner's decision and granting
employer's application, the commission accepted the August 23,
1993 opinion of Dr. Edward B. Butts, the treating neurosurgeon.
Dr. Butts opined that, as of that date, claimant could return to
his pre-injury work with no restrictions. In rendering his
opinion, Dr. Butts examined claimant and ordered an MRI. Dr.
Butts opined that the MRI showed some scar tissue and disc
degeneration, but did not show a recurrent disc herniation. Dr.
Butts also took into account that scar tissue could occasionally
cause pain, that claimant had shown improvement following his
surgery, and that claimant had been given adequate rehabilitation
through work hardening. Dr. Butts approved of a description of
claimant's pre-injury job submitted by employer, as well as a job
description submitted by claimant. Dr. Butts' opinion
constitutes credible evidence to support the commission's
findings.
The commission found that employer's October 12, 1993
application was not barred by the doctrine of res judicata. The
October 12, 1993 application presented the issue of whether
claimant could return to his pre-injury work as of August 23,
1993. This issue was not, and could not have been, previously
litigated and determined as to these parties. Moreover, the
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October 12, 1993 application was based upon new evidence,
including Dr. Butts' August 23, 1993 examination of claimant, Dr.
Butts' review of the job descriptions, and the September 8, 1993
MRI. Therefore, the commission did not err in finding that the
October 12, 1993 application was not barred by the doctrine of
res judicata.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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