Safeway Stores, Inc. v. Tammie Danise Rule ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
SAFEWAY STORES, INC.
MEMORANDUM OPINION *
v. Record No. 1598-97-4 PER CURIAM
NOVEMBER 18, 1997
TAMMIE DANISE RULE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kevin J. O'Connell; O'Connell & O'Connell,
on brief), for appellant.
(James F. Green; Ashcraft & Gerel, on brief),
for appellee.
Safeway Stores, Inc. (employer) appeals a decision of the
Workers' Compensation Commission denying its application alleging
a change in condition. Employer contends that the commission
erred in finding that Tammie Danise Rule was not released to
return to her pre-injury work. We affirm the commission's
decision.
The commission held that Dr. Jeffrey P. Rosen's August 21,
1996 medical report did not prove that Rule was fully capable of
carrying out all of the duties of her pre-injury employment. The
commission based that holding upon the following findings:
Dr. Rosen indicated that [Rule] should
undergo a three- to four-week rehabilitative
program for her ankle. However, if this
program was not approved by the insurance
carrier, then she would be released to
regular work. If we found this statement to
be a full-duty release, the carrier, and not
the physician, would control medical
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
management and treatment. It is not the
carrier's privilege to determine necessary or
appropriate treatment, but rather the
treating physician's duty. The claimant has
not reached medical improvement because she
has not yet undergone the recommended
treatment.
Even should we hold that this medical
report is not ambiguous, it still does not
qualify as a full-duty release. A mere
statement that [Rule] can return to work does
not meet the burden of the moving
party. . . . There is insufficient proof
that [Rule] is able to perform all of her
preinjury duties.
"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)). The commission's factual findings are binding and
conclusive upon us, when they are supported by credible evidence.
See Code § 65.2-706; James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989). Thus, unless we can
say as a matter of law that employer proved that Rule was fully
capable of returning to her pre-injury employment, we must affirm
the commission's decision. See Tomko v. Michael's Plastering
Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission articulated legitimate reasons for finding
Dr. Rosen's report ambiguous and for giving it little probative
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weight. Dr. Rosen's conclusion that Rule could return to work
was conditioned upon his finding that she should first undergo
"an aggressive physical therapy program." However, Dr. Rosen
noted Rule's concern that her employer might not consent to the
recommended physical therapy program. Dr. Rosen also noted that
he had informed the employer of his recommendation and states
that "[f]rom an orthopaedic standpoint once she completes her
physical therapy program, she will be at a point of maximum
medical improvement with no impairment from any of her previous
injuries." Recognizing that the employer might refuse to pay for
the therapy, Dr. Rosen states that "if the [employer denies] the
patient's physical therapy . . . then I would place her at a
point of maximum medical improvement." The language of the
report supports the commission's finding that the report
impermissibly surrendered medical management of Rule's claim to
employer.
In light of these reasons, the commission was entitled to
conclude that Dr. Rosen's report did not constitute sufficient
evidence to prove that Rule was capable of carrying out all of
the duties of her pre-injury employment. "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).
Because the medical evidence was subject to the commission's
factual determination and credibly supports the commission's
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findings, we cannot find as a matter of law that the evidence
proved that as of August 21, 1996, Rule was capable of returning
to her pre-injury employment. Accordingly, we affirm the
commission's decision.
Affirmed.
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