Paul Thomas Burke v. Staunton Goodyear ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Cole*
PAUL THOMAS BURKE
MEMORANDUM OPINION **
v. Record No. 1138-01-3 PER CURIAM
SEPTEMBER 11, 2001
STAUNTON GOODYEAR AND
NATIONWIDE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roger A. Ritchie; Roger Ritchie & Partners,
P.L.C., on brief), for appellant.
(Thomas G. Bell, Jr.; Timberlake, Smith,
Thomas & Moses, P.C., on brief), for
appellees.
Paul Thomas Burke contends that the Workers' Compensation
Commission erred in finding (1) he failed to prove that his
herniated cervical discs were causally related to his
compensable March 27, 1998 injury by accident; and (2) he was
not entitled to a change in treating physicians. 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.
*
Retired Judge Marvin F. Cole took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
**
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Causation
"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)). Unless we can say as a matter of law that Burke'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 denying Burke's change-in-condition application, the
commission found as follows:
[W]e must decide whether the herniated discs
revealed for the first time on the December
1999 MRI are causally related to the work
injury. We first note no evidence of signs
or symptoms that have been attributed to any
dermatome serviced by the nerve roots
exiting the spinal column at these two
levels. There are no documented complaints
of neck pain at any level until more than
one year after the industrial accident. We
have no opinion before us from which we can
conclude that the claimant's continuing
symptoms in the right hand are attributable
to these two paracentral disc herniations
which are located superior to the levels
where the claimant suffers from degenerative
changes. It appears that Dr. [Thomas]
Spicuzza's opinion may be based on the
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assumption that the claimant has
consistently complained of neck pain since
the accident. This assumption is not
consistent with contemporaneous medical
records. We cannot determine whether
Dr. Spicuzza has had the opportunity to
review the chiropractic records and those of
Dr. [Lee] Hereford. We cannot determine the
basis and reasoning underlying
Dr. Spicuzza's expressed opinion on the
issue of causation. We find that the
claimant has not met his burden on this
issue . . . .
The commission also found that Dr. Hereford, who was
Burke's treating orthopedist, opined on July 7, 1999 that the
cervical radiculopathy, if present at the C8 level "is probably
related to arthritis in the neck from years of running around."
Dr. Hereford also reported that he could not relate Burke's
condition to his job injury.
"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). Thus, "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). Furthermore, it is well established that "'when an
attending physician is positive in his diagnosis . . ., great
weight will be given by the courts to his opinion.'" Pilot
Freight Carriers, 1 Va. App. at 439, 339 S.E.2d at 572
(citations omitted). The commission, as fact finder, weighed
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the medical evidence. In doing so, it was entitled to give more
weight to Dr. Hereford's opinion than to the opinion of Dr.
Spicuzza. Dr. Spicuzza did not examine Burke until more than
one year after the compensable injury by accident. In addition,
Dr. Spicuzza's report failed to provide any rationale or
underlying explanation for his one-word answer ("Yes") to the
question of whether Burke's complaint of neck injury was related
to the injury by accident, giving little probative weight to Dr.
Spicuzza's opinion.
The record contains no documented complaint of neck pain or
injury until over one year from the date of the compensable
injury by accident. The commission's decision is supported by
Dr. Hereford's opinion and the lack of any basis or explanation
for Dr. Spicuzza's cursory opinion. Thus, we cannot conclude as
a matter of law that Burke's evidence sustained his burden of
proof.
II. Change in Treating Physicians
In denying Burke's request for a change in treating
physicians, the commission found as follows:
Dr. Hereford has opined that he has no
further treatment options that could be
offered the claimant. A careful review of
the medical record reveals that, with the
exception of the MRI which confirmed
degenerative changes in the cervical spine
already identified by x-ray, the treatment
regimen undertaken by Dr. Spicuzza is
essentially the same as that prescribed by
Dr. Hereford. There is no evidence to
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suggest inadequate treatment or failure to
provide needed diagnostic studies or
specialized treatment relative to the
injuries causally related to the work
injury.
Because we affirm the commission's decision that Burke
failed to prove his neck problems were causally related to his
compensable accident, we hold that no change in treating
physicians was warranted in this case. Burke failed to prove
Dr. Hereford abandoned Burke or refused to provide him with
appropriate treatment with respect to the injuries that were
causally related to the compensable accident. Accordingly, we
cannot conclude as a matter of law that Burke was entitled to a
change in treating physicians.
For these reasons, we affirm the commission's decision.
Affirmed.
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