Robert Sharp v. K B R Corporation

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ROBERT SHARP
MEMORANDUM OPINION*
v. Record No. 0715-00-4 PER CURIAM
AUGUST 15, 2000
K B R CORPORATION AND
ASSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kathleen G. Walsh, on brief), for appellant.
(William S. Sands, Jr.; Duncan and Hopkins,
P.C., on brief), for appellees.
Robert Sharp (claimant) contends that the Workers’
Compensation Commission erred in finding that he failed to prove
that his right shoulder problems were a compensable consequence
of his April 30, 1997 left shoulder 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.
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
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
binding and conclusive upon us. See Tomko v. Michael’s
Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In holding that claimant's evidence failed to sustain his
burden of proof, the commission found as follows:
There is no credible direct testimony
from the claimant . . . suggesting that he
performed any deleterious physical activity
with, or suffered any injury to his right
shoulder as a direct consequence of his left
shoulder injury. There was no evidence of
strenuous overcompensation, nor of
subsequent injury resulting from the
performance of tasks with his right arm and
shoulder that he might ordinarily have
performed with the left. . . .
The only activity to which the claimant
attempts to attribute his right shoulder
problems is physical therapy after his
second surgical procedure. However, there
is no evidence that such activity involved
movement that the claimant would not
otherwise have performed. Further, there
are no contemporaneous medical records
corroborating the claimant's testimony on
this point. Noticeably, the physical
therapist recorded that the claimant had
full range of motion in the right shoulder
at the time, and there is no report of
increased right-sided complaints as a result
of the therapy.
. . . Significantly, none of the
claimant's physicians have attributed his
right shoulder problems to his participation
in physical therapy. The only medical
evidence comes from Dr. [Robert P.]
Nirschl. . . . [However,] [h]e does not
identify what, if any, role the left arm
played in the right arm's injury, nor did
the claimant testify regarding overuse of
his right shoulder. While [Dr. Nirschl]
"did not disagree" with the "concept" that
the left shoulder condition "probably"
played a role in the right shoulder
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problems, this opinion is equivocal, and
suggests that it was not arrived at
independently, but at the suggestion of
counsel.
. . . The claimant and his wife
testified that "everything happened" at the
time of the accident on April 30, 1997, that
he had experienced problems with his right
arm "from day one," and only that his right
arm felt worse after physical therapy. They
both testified that they informed Dr.
[Robert] DeBlasi and Dr. Nirschl regarding
his right shoulder complaints on numerous
occasions before June of 1998. However,
these assertions are completely unsupported
by the doctor's contemporaneous treatment
notes.
The commission's factual findings are supported by the
record. In its role as fact finder, the commission was entitled
to give little probative weight to claimant's testimony that his
right shoulder problems began while undergoing physical therapy
in 1998. This testimony was not corroborated by any evidence in
the record, medical or otherwise, and it was in direct
contradiction to the testimony of claimant and his wife that his
right shoulder problems began on the day of the April 1997
accident. It is well settled that credibility determinations
are within the fact finder's exclusive purview. Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). In addition, in light of the equivocal nature of Dr.
Nirschl's opinions and the lack of any medical evidence to
support them, the commission was entitled to give those opinions
little probative weight. "Medical evidence is not necessarily
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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).
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained his burden of proof.
Accordingly, the commission's findings are binding and
conclusive upon us on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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