Marcus Anthony Smalls v. Bell Corp. of Rochester ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
MARCUS ANTHONY SMALLS
MEMORANDUM OPINION*
v. Record No. 0478-03-4 PER CURIAM
JUNE 17, 2003
BELL CORPORATION OF ROCHESTER/
BELL GROUP, INC. AND
TRAVELERS INDEMNITY COMPANY
OF ILLINOIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William S. Sands, Jr.; Duncan & Hopkins,
P.C., on brief), for appellant.
(Francis G. Marrin; Law Offices of Roger S.
Mackey, on brief), for appellees.
Marcus Anthony Smalls (claimant) contends the Workers'
Compensation Commission erred in finding that he failed to prove
that (1) he could not return to his pre-injury work without
restrictions after April 30, 2001; and (2) his medical treatment
and disability after April 29, 2001 were causally related to his
compensable October 16, 2000 injury by accident. Upon reviewing
the record and the parties' briefs, we conclude that this appeal
is without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In ruling that the evidence proved that claimant could
return to his pre-injury work without restrictions by April 30,
2001 and that he failed to prove that his medical treatment and
disability after April 29, 2001 were causally related to his
compensable October 16, 2000 injury by accident, the commission
found as follows:
[B]oth Dr. [Neil] Kahanovitz and
[Dr. Ian A.] Wattenmaker repeatedly opined
that [claimant] displayed subjective
complaints that could not be supported by
objective findings. On February 21, 2001,
Dr. Kahanovitz reported that the claimant's
complaints were "completely inconsistent
with his primarily subjective complaints."
He also relied on the FCE [Functional
Capacities Evaluation] results, which
revealed symptom magnification. Similarly,
Dr. Wattenmaker described the lack of
correlation between a back injury and the
claimant's abnormal physical findings.
Dr. Wattenmaker observed a functional
overlay component and found no objective
injury that prevented the claimant from
working.
Furthermore, Drs. Kahanovitz and
Wattenmaker viewed a videotape of the
claimant performing various lifting and
bending activities without difficulty.
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Based upon this videotape and the lack of
objective findings, both orthopedic surgeons
determined that after April 30, 2001, he
could return to work without restrictions.
Additionally, on September 5, 2001,
Dr. [Wayne C.] Lindsey agreed with
Drs. Kahanovitz and Wattenmaker that the
claimant could perform regular duty.
This evidence also supports the finding
that the claimant failed to prove that
medical treatment and disability after April
29, 2001, were causally related to the
industrial accident. He did not receive
medical treatment for several months. Then,
an MRI scan taken on September 13, 2001,
revealed a small disc extrusion at the L5-S1
level contacting the left S1 nerve root
sleeve. Dr. [Eugene A.] Eline[, Jr.]
attributed this condition to the industrial
accident. However, Dr. Kahanovitz disputed
a causal relationship between the claimant's
current condition and the work-related
injury. He persuasively explained that:
There is a significant change in
the appearance of the MRI and if
the injury had caused [the
claimant's] current symptoms there
would be no change from the
previous MRI from December 2000.
Therefore a separate and distinct
independent event may have caused
the [claimant's] current
symptomatology but since there is
a distinct difference in the MRI
of 2000 and 2001 I cannot relate
the current symptoms to the prior
symptoms and/or injury of
10-16-2000.
The medical records and opinions of Drs. Kahanovitz,
Wattenmaker, and Lindsey, coupled with the FCE and the
videotape, amply support the commission's findings that claimant
could return to work without restrictions by April 30, 2001 and
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that his medical treatment and disability after April 29, 2001
were not causally related to his compensable injury by accident.
"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, 215 (1991). As fact finder, the commission weighed the
medical evidence, accepted the opinions of Drs. Kahanovitz and
Wattenmaker, and rejected Dr. Eline's opinion. "Questions
raised by conflicting medical opinions must be decided by the
commission." Penley v. Island Creek Coal Co., 8 Va. App. 310,
318, 381 S.E.2d 231, 236 (1989).
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that claimant's evidence sustained his burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
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