Dickenson County Med Center v. Janie Beller ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
DICKENSON COUNTY MEDICAL CENTER
AND
FIDELITY & CASUALTY INSURANCE COMPANY
v. Record No. 0570-95-3 MEMORANDUM OPINION *
PER CURIAM
JANIE M. BELLER SEPTEMBER 19, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Paul C. Kuhnel; Woods, Rogers & Hazlegrove, on
brief), for appellants.
(Daniel Sachs, on brief), for appellee.
Dickenson County Medical Center and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Janie M. Beller
(1) proved that her back condition was causally related to her
compensable March 21, 1994, injury by accident; (2) was entitled
to temporary total disability benefits after May 29, 1994; and
(3) adequately marketed her residual work capacity after
May 29, 1994. 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. Rule
5A:27.
I. and II. Disability
On appeal, we view the evidence in the light most favorable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the party prevailing below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[I]t
is fundamental that a finding of fact made by the Commission is
conclusive and binding upon this court on review. A question
raised by conflicting medical opinion is a question of fact."
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986).
The parties stipulated that Beller sustained a compensable
neck and shoulder injury on March 21, 1994. The deputy
commissioner found that Beller failed to prove that her alleged
back condition was causally related to the March 21, 1994, injury
by accident. The full commission based its finding of post-
May 31, 1994, partial disability upon Dr. Vanover's objective
findings documenting Beller's continuing neck and shoulder pain
and spasms. In awarding compensation benefits to Beller, the
commission found the following:
[W]e find that [Beller] continued to be
partially disabled after May 31, 1994.
Although Dr. [Mary C.] Luther released
[Beller] to work, Dr. [Patricia H.] Vanover
continued to document objective findings
which establish that [Beller] cannot engage
in the heavy lifting requirements of her job.
Even Dr. [Matthew W.] Wood, who saw [Beller]
on one occasion, suggested work hardening if
[she] is unable to work.
The evidence proved that Dr. Vanover saw Beller on
April 8, 1994, and May 12, 1994, at which time she diagnosed
acute cervical strain and acute L-S strain. Dr. Vanover
attributed Beller's neck and shoulder pain to her compensable
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March 21, 1994, injury by accident. On June 16, 1994, Dr.
Vanover released Beller to light duty, but stated that Beller
could not return to her regular job requiring heavy lifting. In
June 1994, Dr. Vanover continued to document objective findings
of neck and shoulder pain and spasms. On June 27, 1994, Dr.
Vanover reiterated her opinion that Beller was fit for light duty
work, such as clerical work, but that she could not perform her
regular duties.
In its role as fact finder, the commission was entitled to
accept Dr. Vanover's opinion and to reject the contrary opinion
of Dr. Luther. "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 fact
that there is conflicting 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). The medical records and
opinions of Dr. Vanover constitute credible evidence to support
the commission's finding that Beller remained partially disabled
after May 31, 1994.
III. Marketing
The commission also found that Beller adequately marketed
her residual work capacity after May 31, 1994. "What constitutes
a reasonable marketing effort depends upon the facts and
circumstances of each case." The Grief Companies v. Sipe, 16 Va.
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App. 709, 715, 434 S.E.2d 314, 318 (1993).
Beller testified that as soon as she was released to work by
Dr. Luther, she returned to employer asking that she be allowed
to work. Employer refused to allow Beller to work in her regular
job because it did not believe she was physically able to care
for patients. Thereafter, Beller immediately sought employment
from numerous stores in Haysi. Beller's testimony provides
sufficient credible evidence to support the commission's finding
that she adequately marketed her residual work capacity.
For these reasons, we find that the commission did not err
in awarding temporary total disability benefits to Beller
beginning March 21, 1994, and continuing. Accordingly, we affirm
the commission's decision.
Affirmed.
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