Jorge Quant v. The Salvation Army, Inc. ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
JORGE QUANT
v. Record No. 0079-95-4 MEMORANDUM OPINION *
PER CURIAM
THE SALVATION ARMY, INC. JULY 18, 1995
AND
RELIANCE NATIONAL INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Arturo Hernandez, on brief), for appellant.
(Dawn E. Boyce; Trichilo, Bancroft, McGavin, Horvath &
Judkins, on brief), for appellees.
Jorge Quant contends that the Workers' Compensation
Commission erred in finding that (1) he was able to return to his
pre-injury work; and (2) he failed to prove that arthroscopic
surgery was reasonable and necessary. Specifically, the claimant
argues that the commission erred in accepting the opinions of
other doctors over that of his treating orthopedic surgeon, Dr.
Mark W. Theiss. 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.
On appellate review, we must 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1990). "[I]t is fundamental that a finding of fact made by the
Commission is binding and conclusive 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). "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, 214 (1991).
While we have stated that the opinion of the treating
physician is entitled to great weight, Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986),
the law does not require that the treating physician's opinion be
accepted over that of others. Accordingly, the commission was
entitled to accept the opinions of the independent orthopedic
surgeons, Drs. Robert O. Gordon and Joseph D. Linehan, over that
of the treating orthopedic surgeon, Dr. Theiss, to find that the
claimant was capable of returning to his pre-injury work and that
surgery was not reasonable or necessary.
The commission noted that, "[w]hile we are reluctant to rule
against treatment recommended by a treating orthopedic surgeon,
we are impressed in this case by the opinions of two physicians
who indicate the claimant is exaggerating his symptoms." The
commission also based its denial of recovery for the surgery upon
the claimant's documented failure to fully cooperate with the
independent orthopedic examinations, and upon the lack of
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objective findings indicating a need for surgery at the present
time. The opinions of Drs. Gordon and Linehan constitute
credible evidence to support the commission's decision.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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