Gary Lee Sloas v. Babcock & Wilcox, etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
GARY LEE SLOAS
v. Record No. 0596-95-3 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
BABCOCK AND WILCOX JULY 23, 1996
CONSTRUCTION COMPANY and
PACIFIC EMPLOYERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William H. Fralin, Jr. (Jolly, Place, Fralin &
Prillaman, P.C., on briefs), for appellant.
Ruth N. Carter (William B. Judkins; Midkiff &
Hiner, on brief), for appellees.
On June 16, 1993, claimant, Gary Lee Sloas, sustained an
injury to his lower back while working for employer, Babcock and
Wilcox Construction Company. Employer accepted claimant's claim
and, accordingly, the commission awarded claimant temporary total
disability benefits beginning June 30, 1993. Except for a
three-week period in September 1993, claimant received temporary
total benefits until June 1994.
This matter came before the commission on employer's June
1994 application for hearing alleging claimant was able to return
to work as of June 1, 1994 and seeking to terminate the temporary
total benefits award. Accordingly, employer bore the burden of
proving a change in conditions by a preponderance of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence. E.g., Rossello v. K-Mart Corp., 15 Va. App. 333, 335,
423 S.E.2d 214, 216 (1992) (quoting Pilot Freight Carriers, Inc.
v. Reeves, 1 Va. App. 435, 438, 339 S.E.2d 570, 572 (1986)). To
meet its burden, employer had to prove claimant was "``able fully
to perform the duties of his preinjury employment.'" Celanese
Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690
(1985) (quoting Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284
S.E.2d 605, 607 (1981)).
The commission found employer met its burden. On appeal,
this Court construes the evidence in the light most favorable to
the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins,
10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The
commission's findings of fact will be upheld if supported by
credible evidence. James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989).
I.
Claimant contends that the opinion of Dr. Thomas Love, the
physician who released claimant to return to work, does not
provide credible evidence to support the commission's decision on
the ground that Dr. Love was not aware of claimant's regular duty
work requirements. We disagree.
The evidence shows that claimant's job as a boilermaker
required him to work in tight places and do a lot of bending and
climbing. Claimant testified that he often had to lift objects
weighing over fifty pounds, that he had to lift and use various
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tools weighing between 100 and 200 pounds, and that he had to
build scaffolding, which required constant pushing of pieces of
material weighing forty to sixty pounds.
Admittedly, claimant did not provide his particular job
requirements to Dr. Love; nor was Dr. Love given a description of
claimant's particular job. However, Dr. Love released claimant
without restriction. Accordingly, whether Dr. Love was familiar
with claimant's particular duties is immaterial. He released
claimant to perform any task.
Furthermore, the evidence shows that Dr. Love was generally
familiar with the job duties of a boilermaker. He had other
patients who were boilermakers, and he described the job as
involving continuous heavy lifting of objects weighing over
seventy-five pounds. The commission found that Dr. Love was
sufficiently familiar with claimant's job duties. This finding
is supported by credible evidence. The specific description
given by claimant was within the parameters of Dr. Love's more
general description.
II.
Claimant also contends that Dr. Love's opinion does not
provide credible evidence to support the commission's decision on
the ground that Dr. Love did not examine claimant on May 18,
1994, the day he released him. We disagree.
Dr. Love, an orthopedic surgeon, first examined claimant in
March 1994 on referral from Dr. Philip Fioret, claimant's
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treating physician. At that point, Dr. Love found no objective
evidence of an orthopedic problem related to claimant's
condition. Dr. Love noted that the results of claimant's
neurological examination and MRI, conducted the previous January
and October, respectively, were normal. However, based entirely
on claimant's complaints of pain, Dr. Love diagnosed him with
"mechanical low back pain," a condition which Dr. Love
acknowledged exhibits no objective physical signs.
Dr. Love recommended aggressive physical therapy for
claimant and ordered objective testing of claimant's complaints
of pain in the form of a Functional Capacity Evaluation ("FCE").
Dr. Love referred claimant to physical therapy, but claimant
continually missed the appointments. In May 1994, Christopher L.
Crank, the physical therapist, conducted the FCE. Dr. Love read
the FCE results as showing no objective indication that claimant
suffered back pain.
Claimant again saw Dr. Love May 18, 1994. Claimant stated
that the second visit lasted five minutes and that Dr. Love did
not examine him. However, Dr. Love changed his diagnosis of
mechanical back pain. This change was based on the absence of
objective signs of pain as demonstrated by inconsistencies in the
FCE, claimant's positive Waddell's testing results, the results
of other pain evaluations, and claimant's having done certain
automotive work inconsistent with the pain he described. Dr.
Love noted, "[a]t this point there are no restrictions," and
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released claimant to return to regular, "full duty" work on June
1, 1994 following two weeks of work hardening.
Credible evidence supports the commission's finding that Dr.
Love was sufficiently familiar with claimant's physical condition
to release him to return to work. Dr. Love examined claimant in
March and found nothing wrong, other than claimant's complaints.
When the physical therapy tests later revealed no objective
support for claimant's complaints and produced results which were
inconsistent with claimant's descriptions of pain, Dr. Love
concluded that his original diagnosis of mechanical back pain was
incorrect. Additionally, none of claimant's previous physicians
had detected any objective findings to support the claimed
injury.
Given his examination in March which revealed no objective
indication of injury and the subsequent tests results which
demonstrated no objective indication of pain, Dr. Love could
reasonably concluded that claimant could return to work. The May
18 release simply reaffirmed the absence of an injury.
III.
Claimant also contends that Dr. Love's opinion does not
provide credible evidence to support the commission's decision on
the ground that Dr. Love's release was prospective. We disagree.
As claimant contends, the commission has held that a
prospective release to return to work is insufficient. See
Counterman v. Providence Electric Corp., 71 O.I.C. 81, 82 (1992);
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Haggins v. American Academy of Otolaryngology, 70 O.I.C. 293,
295-96 (1991). Dr. Love released claimant to return to work on
June 1, following two weeks of work hardening.
Credible evidence supports the commission's finding that the
release was not conditioned on claimant's attending work
hardening or successfully completing it. Dr. Love's office note
of May 18 states, "At this point, there are no restrictions."
Dr. Love testified that he prescribed the work hardening because
he thought claimant was not in good physical condition and would
benefit from the program. Accordingly, the release was effective
May 18, and the prescribed work hardening was inconsequential to
that decision.
IV.
Claimant also contends that the commission erred in using
Crank's physical therapy reports for any purpose. We find no
basis for claimant's contention. The opinion of the commission
specifically states that the commission considered Crank's
reports "only so far as Dr. Love relied upon or incorporated them
in his own reports."
V.
Claimant next contends that Dr. Love's opinion does not
provide credible evidence to support the commission's decision on
the ground that it was based, in part, on the findings of a
physical therapist. We disagree.
Dr. Love testified that his decision to release claimant to
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return to work was based upon his own evaluation. Contrary to
claimant's assertion, the evidence does not suggest that Dr. Love
merely adopted Crank's "opinion." Rather, the evidence supports
the finding that Dr. Love considered Crank's findings, as well as
other medical evidence, in reaching his conclusion that claimant
suffered no injury.
VI.
Claimant also contends that the commission erred in
crediting the opinion of Dr. Love over that of Dr. Fioret. We
disagree.
The commission based its conclusion that claimant was able
to return to pre-injury employment on the "lack of objective
findings of injury by any physician who has examined him since
the time of the initial injury." On this point, the commission
did not credit the opinion of Dr. Love over that of Dr. Fioret.
Rather, the commission accepted the uncontradicted opinions of
both Drs. Love and Fioret, as well as that of Dr. Powell, that
claimant exhibited no objective indicia of injury.
The only relevant distinction between the opinions of Drs.
Love and Fioret was that Dr. Fioret was persuaded by claimant's
subjective complaints while, in light of the physical therapy
reports demonstrating no objective signs of pain, Dr. Love was
not. On this disputed point, the commission accepted Dr. Love's
opinion. A question raised by conflicting medical opinion is a
question of fact to which we must defer. E.g., City of Norfolk
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v. Lillard, 15 Va. App. 424, 429-30, 424 S.E.2d 243, 246 (1992).
VII.
Claimant also contends that the commission erred in basing
its findings on evidence of claimant's failure to cooperate with
medical treatment. The record fails to support this conclusion.
It is clear that, because employer never raised the issue,
evidence of claimant's refusal of medical treatment was
irrelevant for purposes of barring continued compensation. See
Code § 65.2-603(B); Biafore v. Kitchen Equipment Co., 18 Va. App.
474, 478, 445 S.E.2d 496, 498 (1994). The commission did not
consider such evidence. The opinion of the commission
specifically states, "the claimant's alleged failure to cooperate
with medical treatment is not an issue."
However, claimant contends that Dr. Love's opinion was
improperly based in part on evidence of claimant's failure to
cooperate with treatment and, therefore, does not provide
credible evidence to support the commission's decision. We
disagree. Claimant's argument goes to the weight that Dr. Love's
opinion should be accorded. However, it is peculiarly the
function of the fact finder to determine what weight, if any,
should be accorded to such evidence. See, e.g., McPeek v. P.W. &
W. Coal Co., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969); Board
of Supervisors v. Taylor, 1 Va. App. 425, 431, 339 S.E.2d 565,
568 (1986). Here, it was the prerogative of the commission to
credit Dr. Love's opinion that claimant exhibited no objective
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signs of injury or pain, notwithstanding his consideration of
claimant's failure to attend physical therapy in reaching that
opinion.
VIII.
Finally, claimant contends the commission erred in finding
that he had not attempted to return to work since October of
1993. We agree with claimant that there is a notation in the
medical records that claimant attempted to return to work in
March 1994. However, as both parties agree, the issue of
claimant's attempts to return to work is irrelevant. Because the
commission's opinion was based on the absence of objective
findings of injury by any physician and the opinion of Dr. Love
that claimant's physical therapy reports provided no objective
indication of pain, any error the commission made in its finding
with respect to the dates claimant attempted to return to work is
harmless.
For the foregoing reasons, the opinion of the commission is
affirmed.
Affirmed.
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