Fannon Petroleum, etc. v. John D. Price ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
FANNON PETROLEUM SERVICE, INC.
AND
FEDERATED MUTUAL INSURANCE COMPANY
v. Record No. 1778-95-4 MEMORANDUM OPINION *
PER CURIAM
JOHN D. PRICE JANUARY 23, 1996
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Robert M. McAdam; Wooten & Hart, on brief), for
appellants.
(Kathleen G. Walsh; Ashcraft & Gerel, on brief), for
appellee.
Fannon Petroleum Service, Inc. contends that the Workers'
Compensation Commission erred in finding that John D. Price
("claimant") (1) gave credible testimony; (2) did not
unjustifiably refuse selective employment; (3) sustained a change
in condition as of July 13, 1994; (4) was entitled to an award of
temporary partial disability benefits commencing December 15,
1994; and (5) reasonably marketed his residual capacity between
July 13, 1994 and December 14, 1994. 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. and II.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
On May 1, 1991, claimant sustained a compensable injury by
accident to his right hand, right shoulder, and neck, while
working for employer as a delivery driver. Claimant came under
the care of Dr. Kim Marsh, a neurosurgeon, who performed surgery
on claimant's neck on September 3, 1991. Dr. Marsh released
claimant to light duty in January 1992.
In April 1992, claimant began part-time selective employment
at the communications center for Spotsylvania County (the "911
Center"), taking emergency calls and dispatching assistance. In
July 1993, he began working full-time in the 911 Center.
Claimant earned an average weekly wage of $318.60 in this job.
In June 1994, a new 911 Center opened, including a new
communications control room. In the new center, claimant had to
sit in a chair and monitor a computer screen, which was higher
than his shoulders. Claimant testified that this arrangement
caused him to have to squint and raise his neck to be able to see
the monitor through his lower bifocals. When training began in
the new 911 Center in May 1994, claimant started experiencing
2
increasing neck pain and headaches. In June 1994, claimant
returned to Dr. Marsh and reported that his neck pain had
increased due to the arrangement of his computer equipment at
work. On July 13, 1994, claimant resigned his position due to
these problems.
Claimant admitted that on July 11, 1994, he had an
altercation with a co-worker, causing him to submit a resignation
letter on July 12, 1994. Claimant testified that he "blew up" at
the co-worker due to excessive fatigue caused by working two
consecutive twelve-hour shifts. The next day, claimant asked for
the letter back and wrote another resignation letter citing his
neck problems as his reason for leaving.
Angela Anderson, claimant's supervisor, knew claimant was
having neck problems after the May 1994 training began. She had
also been advised by Dr. Marsh in a June 28, 1994 letter that the
placement of claimant's computer equipment needed to be changed
to aid his comfort. As of July 13, 1994, Anderson had not made
any changes to the arrangement of claimant's computer equipment.
On December 15, 1994, claimant acquired a new position as a
security guard, earning $216.40 per week.
The commission ruled that claimant was justified in
terminating his selective employment on July 13, 1994. In doing
so, the commission weighed the totality of the evidence and
resolved any inconsistencies in favor of claimant. The
commission was entitled to accept claimant's testimony concerning
3
the reason he left the 911 job. Moreover, claimant's testimony
is corroborated by Dr. Marsh's medical records and deposition
testimony. After June 28, 1994, Dr. Marsh consistently opined
that claimant's computer equipment needed to be placed in an
ergonomically correct arrangement to alleviate his neck pain and
to enable him to work.
Claimant's testimony, coupled with Dr. Marsh's medical
records and opinions, constitute credible evidence to support the
commission's decision. "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).
The full commission relied upon the deputy commissioner's
credibility determination in reaching its decision. 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). Based
upon this record, the commission was entitled to find that
claimant's testimony was credible. "In 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." Brooks, 12
Va. App. at 894, 407 S.E.2d at 35.
III.
"[A] change in condition 'means a change in physical
4
condition of the employee as well as any change in the conditions
under which compensation was awarded or terminated which would
affect the right to, amount of, or duration of compensation.'
Code § 65.2-1.8." Crystal Oil Co. v. Dotson, 12 Va. App. 1014,
1018-19, 408 S.E.2d 252, 253 (1991). Because credible evidence
supports the commission's finding that claimant no longer
possessed the capacity to perform his selective employment, the
commission did not err in finding that claimant sustained a
compensable change in condition. Accordingly, the commission did
not err in awarding temporary total disability benefits to
claimant, beginning July 13, 1994 through December 14,
1994, and temporary partial disability benefits thereafter based
upon his earnings as a security guard.
Because our rulings on employer's first three questions
presented dispose of this appeal, we need not address employer's
last two questions presented.
For the stated reasons, we affirm the commission's decision.
Affirmed.
5