Bobby Derwin Gibson v. Bill Gatton Chevrolet ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
BOBBY DERWIN GIBSON
MEMORANDUM OPINION*
v. Record No. 1484-01-3 PER CURIAM
OCTOBER 2, 2001
BILL GATTON CHEVROLET CADILLAC ISUZU AND
CINCINNATI CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Terry G. Kilgore; Wolfe, Farmer, Williams &
Rutherford, on brief), for appellant.
(Christen W. Burkholder; Christen W.
Burkholder, P.C., on brief), for appellees.
Bobby Derwin Gibson (claimant) contends that the Workers'
Compensation Commission erred in (1) finding that he
unjustifiably refused selective employment on or about May 4,
2000; (2) finding that his headaches were not causally related
to his compensable cervical strain; and (3) considering the
issue of causation when employer did not raise that issue before
the deputy commissioner at the hearing. 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. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). "Factual findings made by the commission will be upheld
on appeal if supported by credible evidence. See James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).
In ruling that employer proved that claimant unjustifiably
refused selective employment and in terminating claimant's
outstanding award effective May 9, 2000, the commission found as
follows:
Dr. [Matthew] Wood, the claimant's treating
physician, is in the best position to
determine his ability to return to light
duty work on or about May 4, 2000. In
reaching this conclusion, we note that [Dr.
Wood] had access to all of the claimant's
medical records, as well as the initial
records concerning the history of the
claimant's injury. [Dr. Wood] is therefore
in a better position to determine the
claimant's work ability than a psychologist
who performed testing at the request of
claimant's counsel after there was a release
to regular work. We also note that the
claimant testified to an inability to drive
safely because of limited range of motion in
his neck. This is contrary to the medical
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reports. In addition the claimant testified
to driving around town. As to the
claimant's assertion that he could not work
because of a warning on his medication, Dr.
Wood who was the claimant's treating
physician was in the best position to
determine his medication needs and whether
they prohibited his return to work. The
doctor approved the light-duty driving job
and also released him to work.
The commission's findings are supported by credible
evidence, including the medical records and opinions of
claimant's treating physician, Dr. Wood. "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 was entitled to weigh the medical
evidence, to accept Dr. Wood's opinions, and to reject the
contrary opinion of Dr. Timothy A. Urbin, a licensed
psychologist. Dr. Urbin interviewed and tested claimant upon
his counsel's request, was provided an inaccurate history of
claimant's injury, and never indicated whether he was aware of
claimant's previous testing or treatment by Dr. Wood and
Dr. Douglas P. Williams, a neurologist. "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 commission's findings are supported by credible
evidence, they are binding and conclusive upon us. "The fact
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that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
II. and III.
With respect to the issue of the causation of claimant's
headaches, the commission noted in a footnote to its opinion
that "[t]he deputy commissioner noted that because the carrier
did not raise the issue of causation, it would not be decided."
Moreover, the commission recognized that the primary issue on
review was whether the claimant refused light duty employment on
or about May 4, 2000. In discussing claimant's headaches as
they related to this issue, the commission noted the following:
The record reflects that since the accident
the claimant has reported problems with
headaches. However, the record does not
establish whether the headaches were the
result of the cervical strain or an
additional injury that occurred at the time
of the accident. The Memorandum of
Agreement only accepted a cervical strain.
Dr. Wood, a neurosurgeon, who has treated
the claimant since the time of the accident
has not stated that the claimant cannot work
because of the headaches. He in fact
released the claimant to his pre-injury
work. He has sought consultations from
Dr. Williams concerning the claimant's
headaches. Dr. Williams has indicated that
the headaches may be refractory.
Dr. Williams has made no statement
concerning claimant's ability to work.
Nothing in this record indicates that the commission
specifically addressed the issue of the causation of claimant's
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headaches. Rather, the record shows that the commission
discussed claimant's headaches in the context of determining
whether the headaches had any bearing upon the issue of
claimant's unjustified refusal of selective employment.
Accordingly, we find no merit in the second and third questions
presented by claimant on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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