Mike A. Sharp v. Agglite of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MIKE A. SHARP
MEMORANDUM OPINION*
v. Record No. 2842-98-2 PER CURIAM
MAY 18, 1999
AGGLITE OF VIRGINIA AND
ROYAL INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Christopher C. Booberg; Geoffrey R. McDonald
and Associates, on brief), for appellant.
(William C. Walker; Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellees.
Mike A. Sharp contends that the Workers’ Compensation
Commission erred in holding that he failed to prove that he was
totally disabled from December 2, 1997 through February 7, 1998,
and partially disabled beginning February 8, 1998, as a result of
his compensable December 17, 1996 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. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Unless
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
we can say as a matter of law that claimant’s evidence sustained
his burden of proof, the commission’s findings are binding and
conclusive upon us. See Tomko v. Michael’s Plastering. Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In reversing the deputy commissioner and holding that Sharp
failed to sustain his burden of proof, the commission found as
follows:
The report issued by Dr. [Gary L.]
Baker in January 1998 recording severe
restrictions is entitled to little weight,
because it was not prepared in conjunction
with a contemporaneous medical examination.
Dr. Baker had not seen [Sharp] since
September or early October 1997, according
to the medical records filed with the
Commission, as well as the plain and
uncontradicted testimony of [Sharp].
Therefore, Dr. Baker had no reasonable basis
on that later date to revise his earlier
report, especially one so inconsistent with
prior findings that [Sharp] could be
released from medical care. This opinion
revised by Dr. Baker in January 1998 is not
explained or clarified or justified, and we
accord it no probative weight. Similarly,
Dr. Baker's later report of a permanent
residual condition is not credible evidence
that the claimant is unable to perform his
pre-injury work, absent a contemporaneous
medical evaluation or functional analysis to
show such alleged residual incapacity.
"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, 215 (1991). An unexplained conflict existed between
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Dr. Baker's pre-1998 opinion that Sharp could perform his
pre-injury work without restrictions as of October 6, 1997, and
Dr. Baker's January and February 1998 opinions to the contrary.
Moreover, unlike the October 1997 opinion, Dr. Baker's later
opinions were unsupported by contemporaneous medical
examinations.
Based upon these unexplained inconsistencies, the
commission, in its role as fact finder, could properly deny
probative weight to Dr. Baker's January and February 1998
reports. Absent those reports, we cannot hold, as a matter of
law, that Sharp's evidence sustained his burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
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