Poeples Drug, etc. v. Joseph Cousar ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
PEOPLES DRUG STORES, INC.
AND
PACIFIC EMPLOYERS' INSURANCE MEMORANDUM OPINION *
COMPANY PER CURIAM
FEBRUARY 18, 1997
v. Record No. 1677-96-4
JOSEPH COUSAR
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Douglas A. Seymour, on brief), for
appellants.
(John C. Duncan, III; Duncan and Hopkins, on
brief), for appellee.
Peoples Drug Stores, Inc. and its insurer (jointly referred
to herein as employer) contend that the Workers' Compensation
Commission (commission) erred in (1) awarding Joseph Cousar
(claimant) permanent total disability benefits pursuant to Code
§ 65.2-503(C)(3) based upon its finding that claimant sustained a
permanent and irreversible brain injury causally related to his
July 22, 1985 compensable injury by accident, and (2) refusing to
consider Dr. Bryan A. DeFranco's September 18, 1995 addendum to
his June 16, 1995 MRI report. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[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). "Questions raised by conflicting medical opinions must
be decided by the commission." Penley v. Island Creek Coal Co.,
8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
In its role as fact finder, the commission was entitled to
weigh the medical evidence and to accept the opinions of
claimant's treating physicians, Drs. Najmaldin O. Karim, Anne C.
Gawne, and Renana E. Brooks. The commission was also entitled to
reject the opinion of independent medical examiner Dr. Ramon B.
Jenkins, who examined claimant on two occasions at employer's
request. In cases of conflicting medical evidence, "'[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.'" Pilot Freight Carriers, Inc. v. Reeves, 1 Va.
App. 435, 439, 339 S.E.2d 570, 572 (1986) (citations omitted).
The medical records and opinions of Drs. Karim, Gawne, and Brooks
constitute credible evidence to support the commission's finding
that claimant sustained permanent and irreversible brain damage
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as a result of the July 22, 1985 work accident, and that
claimant's brain damage has rendered him permanently
unemployable. "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).
II.
In ruling that the deputy commissioner erred in granting
employer's motion to reopen the record for consideration of Dr.
DeFranco's September 18, 1995 addendum to the June 16, 1995 MRI
report, the full commission found as follows:
We first note that the June 16, 1995 MRI
report has not been filed with the Commission
as required by Rule 4.2. It is not clear
whether the claimant possessed a copy of that
document, but the employer's petition to
reopen the record acknowledges that it had
the report prior to the hearing, since it
contacted Dr. DeFranco on August 25, 1995 to
ask that he review it in view of Dr. Staples'
August 17, 1995 contrary interpretation. We
find it significant that the employer had
arranged for the reconsideration review by
Dr. DeFranco before the evidentiary hearing,
but did not advise the Commission or the
claimant or request that the record be left
open to receive it, until the report
favorable to its position was generated. We
find on these facts that the request to admit
such post hearing evidence should have been
presented at the evidentiary hearing, and the
request made afterwards was untimely. . . .
[W]e find that the additional evidence from
Dr. DeFranco was not timely made known to the
claimant or presented to the Commission, and
the claimant was deprived of an opportunity
to cross-examine that "surprise" evidence.
Based upon these factual findings, which are supported by
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credible evidence, we cannot say as a matter of law that the
commission abused its discretion in finding that the deputy
commissioner erred in granting employer's motion to reopen the
record.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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