Christopher B Harrison v. L'Auberge Chez Francois ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
CHRISTOPHER B. HARRISON
MEMORANDUM OPINION*
v. Record No. 1826-02-4 PER CURIAM
NOVEMBER 19, 2002
L'AUBERGE CHEZ FRANCOIS AND
FIREMAN'S FUND INSURANCE
COMPANY OF WISCONSIN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Christopher B. Harrison, pro se, on brief).
(Forest A. Nester; Brizendine & Nilsson, on
brief), for appellees.
Christopher B. Harrison contends the Workers' Compensation
Commission erred in denying his application for a change in
condition. Upon reviewing the record and the parties' briefs,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
"General principles of workman's compensation law provide
that 'in 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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). 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).
In denying Harrison's change-in-condition application, the
commission made the following findings:
[T]here is no evidence that Dr. [Charles]
Park was fully aware of the nature and
extent of treatment that was provided to
[Harrison] in 1994. While Dr. Park was
presumably aware that surgery had been
previously performed at L4-5, because it was
revealed on the MRI study of June 17, 2001,
that physician could not know that the
myelogram studies in 1994 also showed a
herniation defect at L3-4, since these
records were not produced in these
proceedings until late November 2001.
Therefore, Dr. Park had incomplete
information, and we accord his opinion on
causation little weight.
Dr. [Louis E.] Levitt initially deemed the
2001 surgery to be directly related to
[Harrison's] work accident on May 10, 2000.
Even after receiving medical records that
showed an intervening accident and back
treatment over a period of approximately 5
months, Dr. Levitt still considered that the
work accident played some role in the need
for surgery in June 2001, although it was
not the exclusive cause. However, after
receiving Dr. [Bernard] Stopak's records,
which showed back symptomatology since 1969,
and disc herniations at both the L3-4 and
L4-5 levels, but uncorrected at L3-4,
Dr. Levitt reasonably concluded that the
work trauma was only a temporary
exacerbation of [Harrison's] pre-existing
back problems, and that the surgery
performed in 2001 was attributable to
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Harrison's pre-existing problems, with
little, if any, causal relationship to the
work accident on May 10, 2000.
"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). As fact finder, the commission was
entitled to weigh the medical evidence, accept Dr. Levitt's
opinion, and reject Dr. Park's contrary opinion. "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). Dr. Park's opinion concerning
causation was based upon an inaccurate and incomplete medical
history. Where a medical opinion is based upon an incomplete or
inaccurate medical history, the commission is entitled to
conclude that the opinion is of little probative value. See
Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52, 329 S.E.2d
15, 16 (1985).
We note that Harrison attached to his brief several medical
reports and letters, which are not contained in the commission's
record. Dr. Stopak's July 24, 2002 letter and Dr. Park's July
18, 2002 letter were written after the commission rendered its
decision on review on June 21, 2002. Harrison did not request
that the commission consider those letters as after-discovered
evidence. Moreover, because the letters could have been
obtained prior to the hearing through the exercise of reasonable
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diligence, they do not qualify as after-discovered evidence.
Thus, in rendering our decision, we do not consider any evidence
that was not properly before the commission when it rendered its
decision.
The commission's findings, based upon Dr. Levitt's opinion,
are binding and conclusive upon us. Thus, we cannot say as a
matter of law that Harrison's evidence proved that his
disability beginning June 16, 2001 and his June 29, 2001 surgery
were causally related to his compensable May 10, 2000 injury by
accident. See Tomko v. Michael's Plastering Co., 210 Va. 697,
699, 173 S.E.2d 833, 835 (1970).
For these reasons, we affirm the commission's decision.
Affirmed.
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