Paulette's Dusters & Robes v. Juanita Howell ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
PAULETTE'S DUSTERS & ROBES AND
AMERICAN MOTORISTS INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 0542-97-3 PER CURIAM
JULY 29, 1997
JUANITA HOWELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ramesh Murthy; Penn, Stuart & Eskridge, on
brief), for appellants.
(Ginger Jonas Largen; Morefield, Kendrick,
Hess & Largen, on brief), for appellee.
Paulette's Dusters & Robes and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that
employer failed to prove that Juanita Howell's (claimant)
continuing disability was not causally related to her compensable
September 11, 1995 injury by accident. 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.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"General principles of workman's compensation law provide that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
'[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)). Unless we can say as a matter of law that
employer's evidence sustained its burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
In denying employer's change in condition application, the
commission summarized the treating physician's opinions as
follows:
[In his July 11, 1996 medical report, Dr.
Brad] Beeson . . . notes that the claimant
suffers from a chronic degenerative disc
problem in her lower back that is "not a
consequence of her recent lumbar strain." He
goes on to say
I feel that any acute strain would
have had ample time to heal over
the past nine months and do not
feel that her present complaints
can be directly related to the
acute injuries she had last
September.
On September 30, 1996, Dr. Beeson wrote
another report, this time to the claimant's
attorney. In that letter, Beeson opined that
the low back injuries that the claimant
sustained on September 11, 1995, had
aggravated the claimant's pre-existing back
condition. He also noted that the claimant
had been able to work prior to the injury,
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had not been able to return to work since the
injury, has had continuing pain, and is
unable to return to work due to her chronic
pain syndrome.
Based upon this medical evidence, the commission ruled that
"[g]iven Dr. Beeson's reports of July 11 and September 30, 1996,
the evidence, is, at best, in equipose [sic] as to whether the
claimant's disability is unrelated to the work injury.
Therefore, we find that the employer . . . [has] failed to carry
the burden of proof."
Based upon Dr. Beeson's apparently conflicting opinions
concerning the cause of claimant's continuing disability, we
cannot find as a matter of law that employer's evidence sustained
its burden of proof.
Employer contends that the commission ignored Dr. Beeson's
June 14, 1996 notes in rendering its decision. On that date, Dr.
Beeson wrote as follows: "I do not feel that Ms. Howell's
continued back pain is due to any recent injury but more the
result of her degenerative disc disease." There is no evidence
that the commission did not weigh this medical evidence in
rendering its decision. Moreover, the commission could have
reasonably concluded that Dr. Beeson's June 14, 1996 notes did
not clear up the ambiguity created by his later reports.
"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).
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For these reasons, we affirm the commission's decision.
Affirmed.
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