Tommie Branch v. James Madison University/CW ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
TOMMIE BRANCH
MEMORANDUM OPINION*
v. Record No. 1504-01-3 PER CURIAM
OCTOBER 23, 2001
JAMES MADISON UNIVERSITY/
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Terry L. Armentrout; Armentrout &
Armentrout, P.L.C., on brief), for appellant.
(Randolph A. Beales, Attorney General; Judith
Williams Jagdmann, Deputy Attorney General;
Gregory E. Lucyk, Senior Assistant Attorney
General; Donald G. Powers, Assistant Attorney
General, on brief), for appellee.
Tommie Branch (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
he was entitled to an award of permanent partial disability
("PPD") benefits based upon a twenty percent impairment rating
for loss of each of his legs as a result of his compensable
November 23, 1996 lower back injury. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying claimant's application, the commission found as
follows:
[W]e note no evidence in the record that the
permanency rating assigned by Dr. J.
Phillips is based on an examination either
contemporaneous with, or prior to, his
response of June 23, 2000. We cannot
determine from the record what criteria was
used by Dr. Phillips in rendering his
opinion. Further, the medical record
establishes that the claimant continued to
complain of pain in the absence of any
reports of weakness, numbness or atrophy
documented by Dr. J. Phillips. In addition,
there is no report of muscle spasm in the
lower back and an absence of any objective
diagnostic testing, i.e., MRI results, to
establish stenosis or foraminal
encroachment. While there are intermittent
findings of positive straight leg raises
either unilaterally or bilaterally, there is
nothing in the record from which we can
render a finding that these test results are
correlative with any loss of functionality
of the lower extremities.
Regarding any symptomatology
attributable to either leg, we note that the
vast majority of the medical documentation
relates solely to the right leg with little
evidence of any symptoms in the left leg.
There is evidence of occasional complaints
of numbness extending to the right foot, but
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no evidence that that [sic] this condition
was continuous or in any manner significant
enough to affect the functionality of that
limb. While we note numerous reports that
the claimant's lumbar range of motion is
limited, we also note that Dr. J. Phillips
indicated that this limitation was
"voluntary" by the claimant. In the latter
part of 1998 Dr. J. Phillips noted that the
claimant was experiencing difficulty working
and driving. However, the record does not
reflect continuing problems in that regard.
In May 1999 Dr. J. Phillips advised the
claimant he was unable to work and should
apply for Social Security Disability
benefits. It appears from a fair reading of
the record that this opinion was based on
continuing complaints of pain and
depression.
"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). Contrary to claimant's assertions on
appeal, the commission did not simply accept the opinion of
Dr. Stephen L. Phillips, who examined claimant at employer's
request, over the opinion of the treating physician,
Dr. J. Phillips. Rather, the commission, as fact finder,
weighed all of the medical evidence, and articulated specific
reasons for rejecting Dr. J. Phillips' opinions. In light of
these reasons, the commission was entitled to conclude that
Dr. J. Phillips' opinions did not constitute sufficient evidence
to prove that claimant sustained a twenty percent permanent
impairment to both legs.
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Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that claimant's evidence sustained its burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
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