Noor Ul-Qamar v. Prince William Co. School Board ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
NOOR UL-QAMAR
MEMORANDUM OPINION*
v. Record No. 2695-00-4 PER CURIAM
MARCH 13, 2001
PRINCE WILLIAM COUNTY SCHOOL BOARD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Julie H. Heiden; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellant.
(Thomas C. Palmer, Jr.; Brault, Palmer,
Grove, Zimmerman, White & Steinhilber, LLP,
on brief), for appellee.
Noor Ul-Qamar (claimant) contends that the Workers'
Compensation Commission erred in finding that she was able to
return to light duty work as of December 17, 1998, and in
terminating her compensation benefits as of February 1, 1999,
the date she refused selective employment. 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.
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).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In terminating claimant's benefits as of February 1, 1999,
the commission found as follows:
While the claimant has a longer treatment
history with Dr. [Mohammad] Akbar, he was
not her treating physician for her
work-related accident. Dr. [G.A.] Nejad, an
orthopedist, is her treating physician. He,
in turn, referred her to Dr. [John A.] Bruno
and to Dr. [Mayo F.] Friedlis. . . . We
find the claimant was released to light duty
work on December 10, 1998, which was
followed up with a note on December 17,
1998, by Dr. Nejad. The claimant testified
that she was aware of being released to
return to work. Ms. [Rebecca] Irvin[, loss
control specialist,] testified that on the
following day she provided the claimant with
information about returning to light duty.
While we are not persuaded by the opinion of
Dr. Nejad based on a telephone call from the
claimant's daughter that she was unable to
work, we note that Ms. Irvin did not follow
up at the time with making a job offer. By
her own testimony, Ms. Irvin waited until
the claimant returned to Dr. Nejad. We find
Dr. Nejad, on January 7, and specifically on
January 28, 1999, again found that the
claimant [was] able to return to light duty
work. We are more persuaded by his report,
which is buttressed by the report of Dr.
Bruno, to whom he referred the claimant for
additional care than Dr. Akbar. We note
that Dr. Akbar was treating the claimant for
similar symptoms as a result of a motor
vehicle accident that occurred prior to the
work incident. Dr. Akbar stated the
claimant could not perform the position in
her "job description." This job apparently
was the claimant's regular work. He has
never directly addressed whether the
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claimant could perform light duty work. Dr.
Friedlis, the claimant's current treating
physician, has not expressed an opinion on
her disability or cause. In addition, at
the time of the January 28, 1999, release,
Dr. Friedlis was not seeing the claimant.
The complaints voiced by the claimant are
subjective and not supported by any of the
diagnostic testing.
We find the opinions of the treating
physician are more persuasive than Dr.
Akbar, who has not provided any actual
basis, other than the claimant's subjective
complaints, for finding that she is
disabled. Therefore, in view of the
claimant's failure to make even an attempt
to return to light duty but giving her the
benefit of the doubt, we find benefits
should be terminated effective February 1,
1999, the date the claimant failed to report
for selective employment.
"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). The commission weighed the medical
evidence and, as fact finder, was entitled to accept the
opinions of the treating orthopedists, Dr. Nejad, and Dr. Bruno,
and to reject the contrary opinions of Dr. Akbar. "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). Dr. Nejad's January 7, 1999
and January 28, 1999 notes and opinions releasing claimant to
light duty work and Dr. Bruno's February 23, 1999 report
constitute credible evidence to support the commission's
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findings. As the commission noted, Dr. Akbar relied upon a job
description of claimant's regular work and never addressed the
light-duty position.
For these reasons, we affirm the commission's decision.
Affirmed.
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