Crowder Construction v. Wayne E. Ellis ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CROWDER CONSTRUCTION COMPANY
AND
LIBERTY MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 1779-97-1 PER CURIAM
DECEMBER 9, 1997
WAYNE E. ELLIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(R. Ferrell Newman; Thompson, Smithers,
Newman & Wade, on brief), for appellants.
(Randolph A. Raines, Jr.; Ferguson, Rawls,
MacDonald, Overton & Grissom, on brief), for
appellee.
Crowder Construction Company and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission erred in denying its application alleging a
change-in-condition on the ground that employer failed to prove
that Wayne E. Ellis' current pulmonary symptoms were no longer
causally related to his compensable August 30, 1996 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"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)). 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 found as follows:
[E]mployer has not proven that [Ellis] has
recovered from the effects of his toxic
exposure and returned to his pre-injury
state. [Ellis'] treating internist,
Dr. [G. Wyatt] Webb, did not release him to
return to work when he saw [Ellis] on October
17, 1996. Dr. [F.D.] Elias stated that much
of the disease was present before the injury,
but the injury has exacerbated his
pre-existing disease. Even Dr. [Scott] Irby
answered "yes" and "no" to the question
whether the current complaints of shortness
of breath and weakness are related to the
injury. Although both Dr. Irby and Dr. Elias
note that the mass caused by the inhalation
injury has resolved, this does not indicate
that the current symptoms are unrelated to
the injury or that [Ellis] has returned to
his pre-injury state. The employer is
responsible for an injury which aggravates or
accelerates a pre-existing condition.
2
Employer relied upon the opinions of Dr. Irby. However, as
the commission correctly noted, although Dr. Irby opined on
November 6, 1996 that Ellis' current treatment was related to his
chronic lung condition, Dr. Irby also opined that Ellis' current
complaints of shortness of breath and weakness were, at least in
part, causally related to his compensable injury by accident.
Based upon Dr. Irby's conflicting statements, the commission was
entitled to give little weight to his opinions. "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). Absent Dr. Irby's opinion, there is no persuasive
medical evidence that claimant's symptoms were no longer causally
related to the compensable aggravation of his pre-existing
chronic obstructive pulmonary disease. Accordingly, we cannot
say that employer's evidence sustained its burden of proof as a
matter of law.
For these reasons, we affirm the commission's decision.
Affirmed.
3