Robert Costello Construction v. Bradley

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
ROBERT COSTELLO CONSTRUCTION AND
VIRGINIA FARM BUREAU FIRE AND
CASUALTY INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0323-00-4 PER CURIAM
JUNE 13, 2000
MICKEY W. BRADLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Tenley A. Carroll-Seli; Pierce & Howard,
P.C., on briefs), for appellants.
(William S. Sands, Jr.; Duncan and Hopkins,
P.C., on brief), for appellee.
Robert Costello Construction and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Mickey W. Bradley
(claimant) proved that his headaches were causally related to
his compensable October 10, 1997 injury by accident. Pursuant
to Rule 5A:21(b), claimant presents the additional question of
whether the commission erred in finding that he failed to prove
that he was entitled to continuing temporary total disability
benefits due to his headaches. Upon reviewing the record and
the briefs of the parties, we conclude that this appeal is
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
without merit. Accordingly, we summarily affirm the
commission's decision. See Rule 5A:27.
I. Causation
"The actual determination of causation is a factual finding
that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v. Musick,
7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989). "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).
In holding that claimant's headaches were causally related
to his compensable eye injury, the commission found as follows:
The headaches began following the injury,
particularly when triggered by light. Dr.
[John] Carter wrote, "Mr. Bradley has
headaches which may well be related to the
aphakia in the eye." Dr. [Alan J.] Fink
wrote that he could not find any evidence on
his ocular exam which would cause the
headaches, but he could not categorically
say the symptoms were not caused by the eye
injury. Dr. [Neil W.] Crowe stated that
"clearly as documented on the patient's
orbital CT's, he has had a significant
injury to the right eye which I think is the
underlying etiology for all of his head
pains." Dr. [James S.] Tiedeman stated that
he did not know if the headaches were
related to the injury. Dr. Crowe believes
there is a relationship, and the other
doctors are not certain. Based on this
medical evidence as well as the
circumstantial evidence linking the
headaches to the injury, we are persuaded
that there is a causal relationship.
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Dr. Crowe's medical records and opinions provide credible
evidence to support the commission's findings. As fact finder,
the commission was entitled to accept Dr. Crowe's opinion. "The
fact that there is contrary evidence in the record is of no
consequence if there is credible evidence to support the
commission's findings." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
Disability
"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
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).
In holding that there was no medical evidence that the
claimant's headaches were disabling, the commission found as
follows:
Beginning April 25, 1998, the claimant was
unable to work due to pneumonia. We agree
with the employer that under American
Furniture Company v. Doane, 230 Va. 39, 334
S.E.2d 548 (1985), the claimant is not
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entitled to continuing temporary total
disability benefits during this non-work
related disability. However, on May 10,
1998, the claimant commenced marketing his
residual capacity. He is therefore entitled
to a resumption of temporary partial
disability benefits commencing May 10, 1998,
and continuing.
On May 18, 1998, Dr. Fink noted that claimant was able to
work full employment, but that he might be more comfortable away
from bright sunlight. On May 19, 1998, Dr. Fink noted that
claimant came to his office about the statement contained in the
May 18, 1998 letter regarding the sunlight. Dr. Fink wrote, "He
desires a statement that it is medically necessary for him to
work away from sunlight. I explained to him that on the basis
of my exam on 4/21/98, I could not make such a statement." On
June 1, 1998, Dr. Fink opined that claimant was fully capable of
returning to work, that claimant's headache symptoms were not
disabling, and that claimant might want to wear sunglasses or an
eye patch to keep his headaches to a minimum. On July 8, 1998,
Dr. Carter noted that it "would be best if [claimant] could find
work indoors." At no time did either of these physicians state
that claimant's headaches disabled him from returning to his
full, pre-injury employment. Accordingly, the commission did
not err in denying claimant's request for a resumption of
temporary total disability benefits.
For these reasons, we affirm the commission's decision.
Affirmed.
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