Preston Trucking Co, Inc v. Rex L. Barton ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
PRESTON TRUCKING COMPANY, INC.
and
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH
v. Record No. 1619-94-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
REX L. BARTON MAY 30, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lisa C. Healey (Elizabeth A. Zwibel; Siciliano,
Ellis, Dyer & Boccarosse, on brief), for appellants.
No brief or argument for appellee Rex L. Barton.
Preston Trucking Company, Inc. (Preston) appeals the
Workers' Compensation Commission's decision that denied its
change of condition application. Preston contends that the
commission erred by finding that the evidence failed to prove
that Rex L. Barton, the claimant, was capable of returning to his
pre-injury employment and by finding that Barton was temporarily
totally disabled after he was terminated.
Rex Barton was employed by Preston Trucking Company as a
truck loader. In 1991, Barton sustained a lower back injury
which Preston accepted as compensable. The parties entered into
a memorandum of agreement, and the commission entered an award
for temporary total disability benefits in the amount of $418 per
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
week based upon an average weekly wage of $650.40. Thereafter,
the employer paid the claimant compensation benefits for various
periods of total or partial disability. The latest award was
entered on August 4, 1993, in the amount of $132 per week for
partial incapacity after Barton returned to selective employment
on April 6, 1993, at a lower-than-pre-injury wage of $452 per
week.
After Barton was injured, he was treated by various
physicians, including Dr. Mirza S. Baig, who most recently was
Barton's primary treating physician. In a July 19, 1993,
progress report, Dr. Baig noted that the claimant was continuing
to perform his selective employment and remained under his care.
Although Dr. Baig had reported Barton's continued progress and
that he periodically expected his return to his regular duties
within weeks, he had not released Barton to return to his pre-
injury employment. Dr. Stephen M. Levin, who also treated
Barton, stated in a June, 1993, letter that in his opinion,
Barton was able to return to his pre-injury employment.
Relying on Dr. Levin's report, the employer notified Barton
to return to full duty work as of July 5, 1993. Barton disagreed
with Dr. Levin's opinion that he could perform his pre-injury
duties and did not report for that job. The employer terminated
him on July 13, 1993.
At the evidentiary hearing, the employer introduced evidence
that Dr. John R. Pauswinski performed a physical examination on
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Barton so he could remain certified as a commercial pilot.
Dr. Pauswinski found Barton's back condition to be asymptomatic.
In December, 1993, Dr. William A. Hanff examined Barton and
concluded that "the strain suffered in work injury has resolved"
and that Barton did not need further treatment.
The deputy commissioner found that as of June 17, 1993,
Barton had not sufficiently recovered from his injury to return
to his pre-injury duties and that by failing to report to his
pre-injury job he did not voluntarily terminate his employment
with Preston Trucking. The deputy commissioner denied Preston's
change of condition application and reinstated the temporary
total disability award of $132 per week. On review, the
commission affirmed the deputy commissioner's finding that the
evidence did not prove that Barton could return to his pre-injury
employment; however, because Barton had been terminated from his
selective employment, the commission modified the disability
award to be temporary total, rather than partial, at the previous
rate of $418 per week, effective July 15, 1993, and continuing
until the claimant obtained other employment.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. Crisp v. Brown's Tyson's Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). "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). Findings of fact made by the commission are
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binding on appeal if they are supported by credible evidence.
Christiansen v. Metro Building Supply, 18 Va. App. 721, 723, 447
S.E.2d 519, 520 (1994). "The fact that contrary evidence may be
found in the record is of no consequence if credible evidence
supports the commission's finding." Manassas Ice & Fuel Co. v.
Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). "A
greater number of medical opinions does not necessarily
constitute a preponderance of the evidence. In its review, the
commission is entitled to decide what evidence, if credible, is
entitled to greater weight." Island Creek Coal Co. v. Honaker, 9
Va. App. 336, 339, 388 S.E.2d 271, 273 (1990).
Drs. Pauswinski and Hanff reported that in their opinions,
Barton was able to return to and perform the duties of his pre-
injury employment when they examined him in August and December,
respectively, after his employment had been terminated.
Dr. Baig's reports, however, support the contrary finding by
the commission. Dr. Baig, who was Barton's primary treating
physician, noted in several reports that Barton was not able to
perform his regular job duties. Although Dr. Baig stated at
various times that Barton should soon be able to return to his
pre-injury job, in a May, 1993, progress report, Dr. Baig stated:
"[Barton] should continue with light duty [work]. It is also
recommended that the patient consider going back to regular duty
in about six to eight weeks time, depending on his pain." In a
July, 1993, post-termination report, Dr. Baig stated that Barton
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"continues to experience significant aching pain in the lower
lumbar region. . . . He is advised to continue conservative
treatment and he will be seen in four weeks time." Dr. Baig did
not mention removing Barton from light-duty work status. We
cannot say that, as a matter of law, the commission erred in
finding the report of Dr. Baig more "persuasive" and in finding
that because "the claimant continues to experience symptoms of
the injury . . . to such degree that he is only capable of
performing light duty work," he could not return to his pre-
injury job.
Appellant also contends that the commission erred by
modifying the deputy commissioner's award which reinstated the
partial disability award of $132 per week that was in effect when
the change in condition application was filed. The commission
found that there had been no change in condition in that the
claimant continued to be disabled from returning to his pre-
injury work. However, the evidence showed that because he had
been terminated by the employer from his selective employment, he
was no longer being paid $452 per week, which was the basis for
the partial disability award that had been in effect. The
employer's filing a change of condition application places in
issue whether a claimant is capable of returning to his pre-
injury employment. Armstrong Furniture v. Elder, 4 Va. App. 238,
356 S.E.2d 614 (1987). Moreover, Code § 65.2-708 expressly
provides that "[u]pon its own motion or upon the application of
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any party in interest . . . the Commission may review any award
and on such review may make an award . . . diminishing or
increasing the compensation previously awarded." Having found
that the claimant could not return to his pre-injury employment,
and the evidence showing that he had been terminated from his
selective employment, see Fuel Company v. Barbour, 201 Va. 682,
112 S.E.2d 904 (1960), the commission did not err in reinstating
the award for temporary total benefits and remanding the claim to
the Dispute Resolution Department in order for the claimant to
present verification of subsequent earnings for computation of
subsequent benefits, whether they be for temporary total or
partial, that the claimant may be owed.
Affirmed.
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