Tultex Corporation v. Veola G. Brown ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
TULTEX CORPORATION
MEMORANDUM OPINION * BY
v. Record No. 1610-97-3 JUDGE SAM W. COLEMAN III
FEBRUARY 24, 1998
VEOLA G. BROWN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory T. Casker (Daniel, Vaughan, Medley &
Smitherman, P.C., on brief), for appellant.
Stephen G. Bass (Carter, Craig, Bass, Blair &
Kushner, P.C., on brief), for appellee.
Tultex Corporation (employer) appeals from the Workers'
Compensation Commission's decision denying its application to
terminate Veola G. Brown's (claimant) temporary partial
disability benefits based upon a change in condition. Employer
contends the commission erred by holding that employer failed to
prove that claimant's continuing disability is not causally
related to her January 9, 1994 compensable injury by accident.
Employer also argues that claimant's benefits should be
terminated because she refused selective employment. We hold
that credible evidence supports the commission's decision and
that employer is procedurally barred from asserting its selective
employment claim in this appeal. Accordingly, we affirm the
commission's decision.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On appeal, we view the evidence in the light most favorable
to the party prevailing before the commission. See R.G. Moore
Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). The commission's factual findings are conclusive and
binding on appeal if supported by credible evidence in the
record. See Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712,
427 S.E.2d 215, 217 (1993); Classic Floors, Inc. v. Guy, 9 Va.
App. 90, 95, 383 S.E.2d 761, 764 (1989).
Viewed accordingly, the evidence proved that claimant
suffered a compensable injury by accident on January 9, 1994,
when she fractured her right wrist at work. On January 16, 1995,
claimant's treating physician, Dr. Michael Wenkstern, performed
an "end result examination" on the wrist and determined that
claimant continued to experience "aching pain, tightness, and
soreness in the wrist." Dr. Wenkstern opined:
It is unlikely that she will be able to lift
heavy [objects] on a regular, continuous
basis without some pain and problems with the
wrist. For this reason, she should probably
have a restriction of no lifting more than 15
or 20 pounds with the right hand alone
indefinitely.
He further estimated "a 10% functional impairment of right arm
function as a residual of the fracture."
In March 1995, Dr. Wenkstern diagnosed "residual right wrist
pain and stiffness" following the fracture and reiterated that
Brown was on a lifting restriction due to residual weakness in
the wrist. In June 1995, Dr. Wenkstern approved a light duty job
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for claimant with employer. After claimant began this job, she
returned to Dr. Wenkstern on June 19, 1995. Dr. Wenkstern
reported that claimant complained of "aching pain and stiffness
in the fingers of both hands, more so on the left." He again
diagnosed residuals of the right wrist fracture as well as
osteoarthritic flare-up in the joints of both hands. He stated
that claimant's "hand osteoarthritis, particularly on the left,
seemed to be bothering her the most, and by her description, is
probably why she is having difficulty with her work." He
suggested that claimant take a "medical leave" and noted that
"she is out of work because of the hand arthritis and not
specifical [sic] the wrist fracture."
In February 1996, claimant was treated by Dr. John Rice who
concluded that she suffered from the early stages of inflammatory
arthritis "but no erosive disease and no areas of abnormal
cartilage calcification." Employer filed a change-in-condition
application seeking termination of claimant's benefits on the
ground that her current disability was not causally related to
her work-related injury. The commission denied the application.
We find that credible evidence in the record supports the
commission's denial of employer's change-in-condition
application. "In an application for review of an award on the
ground of a change in condition, the burden is on the party
alleging such change to prove his allegations by a preponderance
of the evidence." Rosello v. K-Mart Corp., 15 Va. App. 333, 335,
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423 S.E.2d 214, 216 (1992) (citation omitted). Factual findings
made by the commission in reviewing an employer's
change-in-condition application are "conclusive and binding upon
the appellate court if based on credible evidence." Jules
Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592,
595 (1985). Here, the commission found that employer failed to
prove that claimant's continuing disability was not related to
her work-related accident. Dr. Wenkstern's observations
attributing claimant's disability in part to residuals from her
right wrist fracture, along with the fact that claimant's lifting
restriction had not been removed, constitute credible evidence to
support the commission's determination. Although claimant's
continuing disability may have been predominantly caused by a
non-work-related osteoarthritic condition, the commission could
reasonably conclude from the evidence that residuals from
claimant's compensable right wrist fracture continued to be a
contributing factor in rendering claimant disabled. In
determining whether credible evidence exists, this Court does not
retry the case, reweigh the facts, or make its own determination
as to the credibility of the witnesses. See Wagner Enters., Inc.
v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Because credible evidence supports the commission's decision, we
must uphold that decision on appeal. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1981).
Additionally, employer argues that the commission should
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have terminated the benefits because claimant refused selective
employment. Because employer's change-in-condition application
alleged only that claimant was no longer disabled as a result of
her work-related injury, we may not consider its selective
employment argument for the first time on appeal. See Green v.
Warwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364
S.E.2d 4, 6 (1988).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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