Church Mutual Ins Co v. Charles Vincent Shifflett ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
CHURCH MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1079-03-4 PER CURIAM
AUGUST 19, 2003
CHARLES VINCENT SHIFFLETT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert M. Himmel; Gentry Locke Rakes &
Moore, on brief), for appellant.
(Peter J. Jones, on brief), for appellee.
Church Mutual Insurance Company (insurer) contends the
Workers' Compensation Commission erred in awarding Charles
Vincent Shifflett (claimant) temporary partial disability (TPD)
benefits beginning March 3, 2002, and continuing. 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.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"In determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991).
Claimant sustained an injury to his spine following an
accident which arose out of and in the course of his employment
with Calvary Baptist Church. In awarding claimant TPD benefits
beginning March 3, 2002, the commission found as follows:
The record supports that the claimant worked
eighty hours per week before his injury but
was restricted to twenty hours per week
since his surgery. The claimant described
several duties that he performed before the
injury, in his role as minister, that he was
presently unable to perform.
The insurer argues that these
responsibilities were not performed in
connection with his job, but because of "the
claimant's religious and altruistic
sentiments." The employer is a church,
however, and the claimant's job was minister
of the church. The claimant testified that
his particular ministerial duties included
service to the elderly and other needy
constituents among the employer's
congregants. Most persuasively, however,
the evidence was not disputed that the
claimant's workweek dropped from eighty
hours per week to twenty hours per week. We
agree with the deputy commissioner that the
claimant showed by a preponderance of the
evidence that his continued employment with
the employer was at a light-duty capacity.
As for the insurer's argument that the
claimant's reduction in earnings beginning
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March 3, 2002, was self-imposed, the
evidence showed that the claimant worked
light-duty for the employer. The employer
chose to continue the claimant's pre-injury
salary for some time despite the reduction
in work hours. Beginning March 3, 2002,
however, the employer chose to enforce the
agreed upon reduction in the claimant's pay.
We agree with the deputy commissioner that
the evidence showed that the claimant worked
a greatly reduced workweek and it was more
than reasonable for his pay to be similarly
reduced.
(Footnote omitted.)
On January 24, 2002, Dr. Gregory A. Helm, claimant's
treating neurosurgeon, confirmed that claimant had been
restricted to light-duty work since his February 9, 2001 back
surgery, with no pushing, pulling or lifting greater than twenty
pounds. Dr. Helm indicated that when he saw claimant for
follow-up on January 22, 2002, claimant was returned to
light-duty employment, with the same restrictions, for twenty
hours per week. A September 14, 2001 Functional Capacity
Evaluation established that claimant demonstrated certain
physical problems and that he would have trouble driving a
church bus, kneeling, bending to greet children, participating
in community activities, and standing for prolonged
services/ministries.
Those medical records, coupled with claimant's undisputed
testimony, provided ample credible evidence to support the
commission's factual findings. Thus, those findings are binding
and conclusive upon us on appeal. Accordingly, we affirm the
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commission's decision that claimant sustained a wage loss
beginning March 3, 2002, attributable to his inability to fully
perform the duties of his pre-injury employment as a result of
his compensable injury by accident.
Affirmed.
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