Rebecca Sue Phipps v. Manassas Park City School Bd. ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
MANASSAS PARK CITY SCHOOL BOARD AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
v. Record No. 0694-01-4
REBECCA SUE PHIPPS
MEMORANDUM OPINION
PER CURIAM
JULY 17, 2001
REBECCA SUE PHIPPS
v. Record No. 0711-01-4
MANASSAS PARK CITY SCHOOL BOARD AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Donald R. Morin; Elisabeth M. Ayyildiz;
Morin & Barkley, on briefs), for Manassas
Park City School Board and Virginia
Municipal Group Self-Insurance Association.
(R. Craig Jennings; Matthew J. Parini;
Brandt, Jennings, Roberts, Davis & Snee,
PLLC, on briefs), for Rebecca Sue Phipps.
Rebecca Sue Phipps contends the Workers' Compensation
Commission erred in finding that she failed to prove she made a
reasonable effort to market her residual work capacity. On
*
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
cross-appeal, Manassas Park City School Board and its insurer
(hereinafter referred to as "employer") contend the commission
erred in finding that Phipps proved her left-sided herniated
disc was causally related to her compensable injury by accident.
Upon reviewing the record and the briefs of the parties, we
conclude that these appeals are without merit. Accordingly, we
summarily affirm the commission's decision. See Rule 5A:27.
Residual Work Capacity
To establish entitlement to benefits, a partially disabled
employee must prove that he or she has made a reasonable effort
to procure suitable work but has been unable to do so. Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 101 (1987). "What constitutes a reasonable marketing effort
depends upon the facts and circumstances of each case." The
Grief Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314,
318 (1993). "The commission . . . determines which . . .
factors are more or less significant with regard to the
particular case." National Linen Serv. v. McGuinn, 8 Va. App.
267, 272-73, 380 S.E.2d 31, 34 (1989).
"[W]e view the evidence in the light most favorable to
. . . the party prevailing before the commission." Id. at 270,
380 S.E.2d at 33. So viewed, the evidence proved Phipps' doctor
released her to perform light duty work as of September 1, 1999.
When Phipps had discussion with her employer in September 1999,
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the employer had no light duty work available. Phipps did not
seek other work. She did not search for work based upon her
belief that she could not work while applying for disability
assistance. The record supports the commission's finding that
Phipps failed to reasonably market her residual work capacity as
of September 1, 1999. Phipps made no effort to market her
residual work capacity. The commission did not abuse its
discretion in concluding that Phipps' subjective perception did
not relieve her of the duty to market her residual capacity.
Accordingly, we cannot find as a matter of law that the evidence
proved Phipps made a reasonable effort to market her residual
work capacity.
Causation
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if credible evidence
supports the finding." Ingersoll Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989). In ruling that Phipps
suffered a herniated disc and corresponding disability as a
result of her compensable February 10, 1999 injury by accident,
the commission found as follows:
Dr. [Spencer G.] Feldmann and his
associates have related the claimant's
symptoms and herniated disc to the work
incident. On February 12, 1999, [claimant]
reported pain shooting down her left leg.
Dr. Feldmann's examination revealed lumbar
spine tenderness, lumbar muscle spasm, and
left leg positive straight leg raising. He
immediately suspected that the claimant
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suffered a herniated disc. On May 5, 1999,
Dr. [Gary A.] DeRosa noted continued left
hip pain that radiated down the hip. On
February 16, 2000, Dr. Feldmann opined that
the herniated disc resulted from the
industrial accident.
Dr. [Gabriel] Gluck has causally
connected the claimant's condition to the
work-related incident. On February 18,
1999, [claimant] told [Dr. Gluck] about
intense left leg and thigh discomfort.
Dr. Gluck diagnosed a lumbar strain and
advised that the claimant's previous back
problems were not contributory. On May 25,
1999, Dr. Gluck opined that the condition
was an exacerbation of the February 1999
work-related incident. On August 17, 1999,
he reported that the weakness of the left
ankle dorsiflexors and the L4-5 disc
herniation were consistent with the
claimant's sudden pain which she felt in her
back and leg while lifting the trash bag at
work on February 10, 1999. On January 13,
2000, Dr. Gluck opined that it was possible
that the disc herniation was caused by the
February 10, 1999, accident. The opinions
of Dr. Feldmann and Dr. Gluck are more
persuasive than the opinion of
Dr. [David C.] Urquia who only reviewed the
medical records.
As fact finder, the commission weighed the medical
evidence, accepted the opinions of Drs. Feldmann and Gluck, and
rejected the contrary opinion of Dr. Urquia. "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). The opinions of Dr. Feldmann
and Dr. Gluck and Phipps' testimony constitute credible evidence
to support the commission's finding. "The fact that there is
contrary evidence in the record is of no consequence if there is
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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).
For these reasons, we affirm the commission's decision.
Affirmed.
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