Yokohama Tire Corp. v. Karen C. Blankenship ( 1996 )

COURT OF APPEALS OF
VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
YOKOHAMA TIRE CORPORATION
AND
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS MEMORANDUM OPINION *
PER CURIAM
v. Record No. 3012-95-3 JULY 2, 1996
KAREN CAMPBELL BLANKENSHIP
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Richard D. Lucas; Woods, Rogers &
Hazlegrove; Carter, Brown & Osborne, on
briefs), for appellants.
(Rhonda L. Overstreet; Lumsden & Overstreet,
on brief), for appellee.
Yokohama Tire Corporation and its insurer (hereinafter
referred to as employer) contend that the Workers' Compensation
Commission erred in holding employer responsible for the cost of
Karen Campbell Blankenship's (claimant) May 18, 1995 cervical
fusion surgery. Employer argues that (1) the surgery was not
reasonable and necessary as required by Code § 65.2-603; and (2)
the commission erred as a matter of law in shifting the burden of
proving the reasonableness and necessity of the surgery from
claimant to employer. 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
5A:27.
On appellate review, we must 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). "[I]t is fundamental that a finding of fact made by the
commission is binding and conclusive upon this court on review.
A question raised by conflicting medical opinion is a question of
fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d
532, 533 (1986). "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, 214 (1991).
The commission was entitled to accept the opinions of
claimant's treating physiatrist, Dr. Verna Lewis, and her
treating orthopedic surgeon, Dr. Hallett H. Mathews, and to
reject the contrary opinions of Drs. Laurence I. Kleiner, John A.
Feldenzer, Murray E. Joiner, and Herbert W. Park. The opinions
of Drs. Kleiner and Feldenzer date to June and July 1994.
Moreover, the conservative treatment they recommended, which Dr.
Lewis followed during the six-month period after they rendered
these opinions, proved unsuccessful. Dr. Joiner examined
claimant on one occasion at the request of employer. The
commission correctly noted that Dr. Joiner's suggestion that
claimant's symptoms were not real and that she was motivated by
secondary gain conflicted with evidence indicating that she had
2
continually tried to return to work and had endured various forms
of treatment, including physical therapy, work hardening, and
injections. Dr. Park, hired by employer to perform a medical
record review, never examined claimant. In addition, he
acknowledged that his conclusions were made prior to receiving
claimant's complete medical records and that he wanted to give
employer "other steps to resolve the case," but that he wanted to
"discuss this subject first." In its role as fact finder, the
commission was entitled to infer from these facts that Dr. Park
lacked objectivity and may have been biased against claimant.
The opinions of Drs. Lewis and Mathews provide credible evidence
to support the commission's finding that the May 18, 1995
cervical fusion surgery was reasonable and necessary.
Accordingly, the commission did not err in holding employer
responsible for the cost of the surgery.
Employer's argument that the commission erred in shifting
the burden of proof is without merit. Once claimant proved,
through the opinions of her treating physiatrist and orthopedic
surgeon, that the surgery was reasonable and necessary, the
commission did nothing more than require employer to rebut
claimant's evidence.
For the reasons stated, we affirm the commission's decision.
Affirmed.
3