Shoppers Food v. John Mafis Godfrey, Jr. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
SHOPPERS FOOD WAREHOUSE
AND
ZURICH INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1721-96-4 DECEMBER 17, 1996
JOHN MAFIS GODFREY, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Colleen Marea Quinn; Cantor, Arkema &
Edmonds, on briefs), for appellants.
(Kathleen G. Walsh; Ashcraft & Gerel, on
brief), for appellee.
Shoppers Food Warehouse and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that (1) John Mafis
Godfrey, Jr., sustained a compensable change in condition as of
September 1, 1994; (2) Godfrey made a reasonable effort to market
his residual work capacity after September 1, 1994; (3) Godfrey
obtained a valid referral from Dr. David E. Couk for treatment
rendered by Dr. Terry L. Whipple; and (4) the Bankhart lesion
diagnosed by Dr. Whipple was causally related to Godfrey's
compensable October 25, 1992 injury by accident. 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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Standard of Review
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 will be upheld if
supported by credible evidence. James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
II. Change in Condition
The evidence proved that on October 25, 1992, Godfrey
sustained a compensable injury by accident to his right shoulder.
The commission awarded Godfrey temporary total disability
benefits for the periods October 28, 1992 through December 13,
1992 and December 29, 1992 through July 13, 1994. On May 24,
1994, Dr. Mayo F. Friedlis, a physiatrist, opined that Godfrey's
rotator cuff tear had healed and released Godfrey to return to
his pre-injury work. On November 30, 1994, based upon Dr.
Friedlis' report, Deputy Commissioner Lee granted employer's
change in condition application and terminated Godfrey's benefits
as of July 13, 1994.
On August 11, 1994, Dr. Donald L. McNay, an orthopedic
surgeon, examined and noted that Godfrey suffered pain when he
placed his arm under weighted stress. Dr. McNay restricted
Godfrey's lifting to fifty to sixty pounds and his overhead
lifting to five pounds.
"[A] change in condition 'means a change in physical
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condition of the employee . . . .'" Crystal Oil Co. v. Dotson,
12 Va. App. 1014, 1018-19, 408 S.E.2d 252, 253 (1991) (citation
omitted). Dr. McNay's August 11, 1994 report constitutes
credible evidence to support the commission's finding that
Godfrey met his burden of proving a change in condition as of
September 1, 1994.
Employer argues that the commission should not have
considered Dr. McNay's August 11, 1994 report because it was
previously before Deputy Commissioner Lee when she rendered her
November 30, 1994 opinion, from which Godfrey did not appeal. In
arguing that the doctrine of res judicata barred the commission
from considering Dr. McNay's report, employer ignores a finding
that Deputy Commissioner Lee stated in her November 30, 1994
opinion. She specifically found that "[s]ince the only issue
before the Commission is the Employer's Application, i.e., the
claimant does not have a change in condition claim before us, we
will not consider whether the August 11, 1994 medical record from
Dr. McNay constituted a valid change in condition and rendered
the claimant partially disabled." That finding dispositively
establishes that employer's res judicata argument is without
merit.
III. Marketing
The commission found that Godfrey made a reasonable effort
to market his remaining work capacity after Dr. McNay imposed
work restrictions. Godfrey submitted a lengthy list of potential
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employers which he contacted between September 1994 and October
1995. Between September 1994 and April 1995, Godfrey submitted
approximately 130 resumes to prospective employers.
On April 1, 1995, Godfrey obtained employment as a used car
salesman. On July 28, 1995, that employer terminated Godfrey's
employment because of anticipated absences for surgery
recommended by Dr. Whipple. Following his termination, Godfrey
interviewed with real estate companies. However, these companies
would not pay the fees necessary to reactivate Godfrey's real
estate license nor could Godfrey afford to pay such fees.
Godfrey's testimony and his list of job contacts constitute
credible evidence to support the commission's finding that
Godfrey made a reasonable effort to market his residual work
capacity. See National Linen Serv. v. McGuinn, 8 Va. App. 267,
272, 380 S.E.2d 31, 34 (1989).
IV. Dr. Whipple's Treatment/Bankhart Lesion
Because Dr. Couk could not determine the cause of Godfrey's
continuing pain, he repeatedly tried to obtain permission from
employer's insurance carrier to refer Godfrey to Dr. Whipple for
evaluation. The insurance carrier did not respond to Dr. Couk's
numerous requests. On July 26, 1995, pursuant to Dr. Couk's
referral, Godfrey was examined by Dr. Whipple, without the
approval of employer or its insurance carrier.
"Whether the employer is responsible for medical
expenses . . . depends upon: (1) whether the medical service was
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causally related to the industrial injury; (2) whether such other
medical attention was necessary; and (3) whether the treating
physician made a referral . . . [of] the patient." Volvo White
Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906
(1985). The commission found that Dr. Couk made a valid referral
of Godfrey to Dr. Whipple. The commission did not err in so
finding. "[M]edical management of the claimant is to be directed
by the treating physician, not by an employer's representative.
'[N]either the employer nor its insurance carrier may limit the
treating physician in the medical specialist, or treating
facilities to which the claimant may be referred for treatment.'"
Jensen Press v. Ale, 1 Va. App. 153, 158, 336 S.E.2d 522, 525
(1985) (citation omitted).
In his July 27, 1995 letter, Dr. Whipple opined that Godfrey
had a Bankhart lesion, that "clinically, the shoulder sublaxes
anteriorly, and [that] such a defect is consistent with his
mechanism of injury." Based upon this opinion, the commission
could reasonably infer that Godfrey's Bankhart lesion and the
surgery recommended by Dr. Whipple were causally related to
Godfrey's compensable injury by accident.
The commission accepted the opinions of Drs. Whipple and
Couk and rejected the contrary opinions of Drs. Debs, Friedlis,
and Pangallo with regard to the cause of the Bankhart lesion and
the necessity of surgery. The medical records and opinions of
Drs. Whipple and Couk constitute credible evidence to support the
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commission's decision. "The fact that there is contrary 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).
For these reasons, we affirm the commission's decision.
Affirmed.
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