Centin Corporation v. Lee E. Mitchem ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CENTIN CORPORATION
AND
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1523-95-2 DECEMBER 12, 1995
LEE E. MITCHEM
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ralph L. Whitt, Jr.; Jennifer G. Marwitz; Sands,
Anderson, Marks & Miller, on briefs), for appellants.
(David L. Pillsbury; Felicia C. Russell, on brief),
for appellee.
Centin Corporation and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that Lee E. Mitchem proved he was
entitled to an award of temporary total disability benefits
commencing January 10, 1994. Employer contends that Mitchem was,
at all times, partially disabled and he failed to market his
residual capacity. Pursuant to Rule 5A:21(b), Mitchem raises the
additional question of whether the commission erred in failing to
hold employer responsible for the cost of the medical treatment
rendered by Dr. John Kendrick. 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
decision. 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).
Factual findings made by the commission must 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 awarding disability benefits to Mitchem, the commission
accepted the opinion of Dr. Kendrick. On April 15, 1994, Dr.
Kendrick opined that Mitchem had been unable to work since
January 10, 1994 and would remain disabled for at least another
three to six months. On December 15, 1994, Dr. Kendrick opined
that Mitchem remained disabled from work. In its role as fact
finder, the commission was entitled to accept Dr. Kendrick's
opinion, on the basis that he was the only physician who treated
Mitchem from October 27, 1993 through February 13, 1995, and to
reject the contrary opinion of Dr. Baljit S. Sidhu. "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. Kendrick's medical records
and opinions provide substantial credible evidence to support the
commission's findings. 1
The commission ruled that employer was not responsible for
1
Because of our ruling affirming the commission's finding of
total disability, we need not address the marketing issue.
2
the cost of Dr. Kendrick's unauthorized treatment. There is no
evidence in the medical records to show that Dr. Sidhu ever
abandoned or released Mitchem from his care, that he rendered
inadequate treatment to Mitchem, or that he referred Mitchem to
Dr. Kendrick. Rather, Dr. Sidhu's October 26, 1993 office notes
reveal that Mitchem's attorney wanted Mitchem to seek a second
opinion from another doctor. In addition, Mitchem testified that
he wanted a second opinion in October 1993 and that his lawyer
recommended he see Dr. Kendrick. Accordingly, we cannot find as
a matter of law that the commission erred in denying Mitchem
recovery of the cost of Dr. Kendrick's unauthorized treatment.
For the reasons stated, we affirm the commission's decision.
Affirmed.
3