Curtis Tony Beverly v. Town of Wise

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
CURTIS TONY BEVERLY
v. Record No. 0430-97-3 MEMORANDUM OPINION *
PER CURIAM
TOWN OF WISE JULY 15, 1997
AND
VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Paul L. Phipps; Lee & Phipps, on brief),
for appellant.
(James R. Hodges; White, Bundy, McElroy,
Hodges & Sargent, on brief), for appellees.
Curtis Tony Beverly (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that he
failed to prove he had remained totally disabled since March 7,
1996 as a result of his compensable February 24, 1994 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.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground
of change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570,
572 (1986)). 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).
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).
Dr. James Travis Burt, the treating neurosurgeon, performed
spine surgery on claimant on December 1, 1995. Dr. Burt released
claimant to return to work without restrictions as of January 30,
1996. Dr. Burt confirmed that release on July 2, 1996.
Dr. Thomas E. Renfro, an internist who treated claimant,
opined that as a result of both his physical and mental
condition, claimant remained totally disabled since March 8,
1996.
Dr. Russell D. McKnight, who treated claimant for
psychiatric problems, opined that claimant had been disabled
since March 11, 1996. Dr. Steven Morgan, a psychiatrist and
neurologist, and Dr. Richard Salamone, a psychologist, who
examined claimant at employer's request in August 1996, opined
that claimant was not disabled.
2
Based upon the opinions of Drs. Burt, Morgan, and Salamone,
we cannot find as a matter of law that claimant proved he
remained totally disabled since March 7, 1996 as a result of his
compensable injury by accident. The commission, in its role as
fact finder, was entitled to weigh the medical evidence, to
accept the opinions of Drs. Burt, Morgan, and Salamone, and
reject the contrary opinions of Drs. Renfro and McKnight.
"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). The commission's rejection
of the opinions of Drs. Renfro and McKnight is supported by the
fact that those physicians lacked claimant's complete and
accurate medical history. Where a medical opinion is based upon
an incomplete or inaccurate medical history, the commission is
entitled to conclude that the opinion is of little probative
value. See Clinchfield Coal Co. v. Bowman, 229 Va. 249, 251-52,
329 S.E.2d 15, 16 (1985).
For these reasons, we affirm the commission's decision.
Affirmed.
3