Southland Corp., etc v. Nazim Ali Alvi ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
THE SOUTHLAND CORPORATION/SEVEN-ELEVEN
AND
AMERICAN PROTECTION INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 0896-96-4 PER CURIAM
OCTOBER 8, 1996
NAZIM ALI ALVI
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael L. Zimmerman; Brault, Palmer, Grove,
Zimmerman, White & Mims, on brief), for
appellants.
(Jeremy Flachs, on brief), for appellee.
The Southland Corporation/Seven-Eleven and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission ("commission") erred in
finding that Nazim Ali Alvi ("claimant") proved he was totally
disabled from May 22, 1994 through December 6, 1994; partially
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disabled from January 14, 1995 through February 5, 1995; and
totally disabled from February 6, 1995 and continuing. 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.
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Employer contends in its question presented that the
commission erred in awarding temporary partial disability
benefits to claimant for the period January 14, 1995 through
February 5, 1995. However, employer did not present any argument
in its brief in support of this contention. Therefore, we will
not address this period of disability on appeal.
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).
Disability from May 22, 1994 through December 6, 1994
The records of Drs. Mahmood Mohamadi, Jeffrey I. Goltz, and
Robert A. Smith provide ample credible evidence to support the
commission's finding that claimant proved total disability from
May 22, 1994 through December 6, 1994 causally related to his
compensable May 21, 1994 back injury.
Dr. Mohamadi began treating claimant on May 25, 1994. Dr.
Mohamadi prescribed "rest at home," and, on May 31, 1994, he
referred claimant to Drs. Goltz and Smith for an orthopedic
evaluation due to claimant's persistent pain. Based upon Dr.
Mohamadi's records, the commission could reasonably conclude that
claimant remained totally disabled from May 22, 1994 through June
6, 1994, when he first saw Dr. Goltz. "Where reasonable
inferences may be drawn from the evidence in support of the
commission's factual findings, they will not be disturbed by this
Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988). Dr. Goltz excused claimant
from work until November 9, 1994, when he released claimant to
full-duty. However, on November 14, 1994, Dr. Smith noted
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claimant's continuing complaints of back pain radiating into his
buttocks, and recommended that claimant undergo an MRI and remain
out of work until his next evaluation. On December 5, 1994, Dr.
Smith released claimant to light-duty work.
Because these medical records provide credible evidence to
support the commission's finding that claimant was totally
disabled from May 22, 1994 through December 6, 1994, we will not
disturb this finding on appeal.
Disability from February 6, 1995 and continuing
The medical records and opinions of Drs. Smith and Daniel R.
Ignacio provide ample credible evidence to support the
commission's finding that claimant proved total disability
beginning February 5, 1995 and continuing.
Claimant stopped working on February 5, 1995 due to
increasing back pain. On February 10, 1995, Dr. Smith noted
claimant's persistent pain, again recommended he undergo an MRI,
and excused him from work. The February 21, 1995 MRI revealed
marked degenerative disc disease at L4-L5 and L5-S1, bulging
discs, and endplate changes at both levels, with focal spinal
stenosis. Dr. Smith referred claimant to Dr. Ignacio for
possible epidural injection therapy. On March 6, 1995, Dr.
Ignacio excused claimant from work and recommended that he
undergo physical therapy. Dr. Ignacio reiterated these
recommendations on April 3, 1995. After April 3, 1995, claimant
went to Pakistan on a family emergency and returned to the United
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States in July 1995. When Dr. Ignacio next evaluated claimant on
July 10, 1995, he noted no physical changes in claimant's
condition and again opined that claimant was totally disabled.
On August 24, 1995, Dr. Ignacio opined that claimant should
continue to remain off work.
Based upon these medical records, the commission could
reasonably conclude that claimant was totally disabled beginning
February 6, 1995 and continuing. Because the commission's
decision is supported by credible evidence, it will not be
disturbed on appeal.
Accordingly, we affirm the commission's decision.
Affirmed.
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