Newport News Shipbuilding, etc v. Joseph W Burnett ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
MEMORANDUM OPINION*
v. Record No. 0954-02-1 PER CURIAM
AUGUST 27, 2002
JOSEPH W. BURNETT, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Christopher R. Hedrick; Mason, Cowardin &
Mason, P.C., on brief), for appellant.
(Gregory E. Camden; Montagna, Breit, Klein &
Camden, LLP, on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company (employer)
contends the Workers' Compensation Commission erred in finding
that Joseph W. Burnett, Jr. (claimant) proved (1) his left leg
condition was a compensable consequence of his 1992 right knee
injury; and (2) he adequately marketed his residual work
capacity after July 10, 2000. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Compensable Consequence
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). "The
actual determination of causation is a factual finding that will
not be disturbed on appeal if there is credible evidence to
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989).
In ruling that claimant proved his left knee condition was
a compensable consequence of his May 9, 1992 compensable work
injury to his right knee, the commission found as follows:
The compensable May 9, 1992, right knee
accident required 2 arthroscopy procedures
and a total knee replacement. We have no
evidence that before the 1992 accident, the
claimant had any problem or a diagnosis of
arthritis in his left knee. It was only
after two arthroscopy procedures to the
right knee that the claimant first reported
on November 4, 1998 a problem with the left
knee. While it appears that from the degree
of arthritis in the left knee it pre-existed
the accident, Dr. [Glenn] Nichols, the
treating doctor, causally related the
deterioration of the knee to the need to
shift weight to the left knee because of the
right knee surgeries. Dr. Nichols has
stated that without the right knee injury he
could not say that the claimant would have
required treatment for the left knee. We
find the opinion of Dr. Nichols to be more
persuasive than that of Dr. [Patrick W.]
O'Connell who examined the claimant one time
at the request of the employer and
Dr. [David] Tornberg who only reviewed
medical records.
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The medical records and opinions of the treating physician,
Dr. Nichols, coupled with claimant's testimony, constitute
credible evidence to support the commission's findings. As fact
finder, the commission was entitled to weigh the medical
evidence, to accept Dr. Nichols' opinions, and to reject the
contrary opinions of Drs. O'Connell and Tornberg. "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). Furthermore, "[i]n determining
whether credible evidence exists, the appellate court does not
retry the facts, reweigh the preponderance of the evidence, or
make its own determination of the credibility of the witnesses."
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
II. Marketing
"What constitutes a reasonable marketing effort depends on
the facts and circumstances of each case." The Greif Cos. v.
Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) (citation
omitted). When the commission's factual determinations are
supported by credible evidence, they will not be disturbed on
appeal. Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217,
220-21, 527 S.E.2d 451, 453 (2000). The commission determines
the weight to give the various criteria it considers. National
Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34
(1989) (citing relevant factors).
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In holding that claimant adequately marketed his residual
work capacity, the commission found as follows:
[C]laimant has attended the Job Club on two
occasions. He has worked with at least
three job counselors who have been
unsuccessful in locating a position within
his physical capacity. He has registered
with the Virginia Employment Commission.
While the claimant may have applied for some
positions that a vocational rehabilitation
specialist would not deem appropriate, this
does not negate that his consistent actions
of applying anywhere that a job was
available were such as to demonstrate a
genuine effort to locate possible
employment. While some of the jobs that the
claimant contacted were clearly not within
his work restrictions, we find that a number
of them were. We do not find that it was
unreasonable for the claimant to apply for
desk clerk positions particularly since a
vocational counselor previously identified
this as a possible job. The claimant also
noted seeing desk clerks sitting. Based on
the totality of the evidence including the
inability of vocational counselor's to
locate employment, we find that in this case
the claimant sufficiently marketed his
remaining capacity.
As fact finder, the commission weighed claimant's evidence
and accepted his testimony and evidence regarding his marketing
efforts. It is well settled that credibility determinations are
within the fact finder's exclusive purview. Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). In light of the nature and extent of claimant's
disability; his training, age, experience and education; the
nature and extent of his job search; the intent of his job
search; availability of jobs in the area; and his cooperation
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with three vocational counselors who failed to locate suitable
employment for him, the commission could reasonably conclude
that claimant adequately marketed his residual work capacity.
The fact that some of the jobs claimant applied for may have
arguably entailed duties outside his work restrictions did not
automatically preclude a finding by the commission that he
adequately marketed his residual work capacity.
Because the commission's decision was based upon credible
evidence, it will not be disturbed on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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