Island Creek Coal Company v. James E. Adkins

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
ISLAND CREEK COAL COMPANY
MEMORANDUM OPINION* BY
v. Record No. 1920-00-3 JUDGE ROBERT J. HUMPHREYS
MARCH 20, 2001
JAMES E. ADKINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lisa Frisina Clement (Michael F. Blair; Penn,
Stuart & Eskridge, P.C., on brief), for
appellant.
D. Edward Wise, Jr. (Arrington, Schelin &
Herrell, P.C., on brief), for appellee.
Island Creek Coal Company appeals a decision of the
Virginia Workers' Compensation Commission denying its
application to terminate temporary total disability benefits
paid to James E. Adkins. Island Creek argues that the
commission erred in determining that it had failed to sustain
its burden of proof to support the application for termination
of benefits.
"Following established principles, we review the evidence
in the light most favorable to the prevailing party." R.G.
Moore Building Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). If credible evidence supports the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
commission's factual finding, we are required to uphold that
finding on review. See Classic Floors, Inc. v. Guy, 9 Va. App.
90, 95, 383 S.E.2d 761, 764 (1989).
So viewed, the evidence presented at the hearing
established that Adkins, who had been an Island Creek employee
for approximately 22 years, sustained an injury to his ankle
which arose out of and in the course of his employment on
October 7, 1997. At that time, Adkins was employed as a
motorman in the VP #3 mine.
Adkins was taken to Buchanan General Hospital immediately
after he sustained the injury, where he was diagnosed with a
fracture of his right fibula and placed in an ankle brace. On
October 9, 1997, Adkins was sent to Dr. Thomas Kramer, an
orthopedist. Dr. Kramer placed Adkins' injured leg in a short
leg fiberglass cast and advised Adkins "it [was] probably going
to be somewhere in the neighborhood of eight to twelve weeks
before [Adkins] . . . [would] be able to return to his usual and
customary occupation or longer . . . ."
Shortly thereafter, Island Creek accepted Adkins' claim as
compensable, and the parties executed a memorandum of agreement.
The commission entered an award on January 22, 1998, granting
Adkins temporary total disability benefits beginning October 8,
1997.
For the next several months, Adkins continued to receive
treatment for his injury, but did not progress as expected. On
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August 23, 1999, Dr. William McIlwain, one of Adkins' treating
physicians, reported that Adkins had reached maximum medical
improvement and was capable of light to moderate duty work, but
should avoid prolonged squatting, as well as stairs and
climbing. He gave Adkins an impairment rating of 15% to his
right leg and 21% to his right foot.
Dr. McIlwain examined Adkins again on September 15, 1999,
and reported that "Adkins [had] an excellent exam. He . . .
complain[ed] of tenderness subjectively but his wound [had]
healed very nicely." Dr. McIlwain then advised Adkins that he
had "objectively" recovered "to his pre-injury state" and that
if his job were available, he had recovered to the point that he
could return to work. 1
Based on Dr. McIlwain's September 15, 1999 report, Island
Creek filed an application to suspend benefits, alleging that
Adkins' physician had released him to return to his pre-injury
work. During a pre-hearing deposition, Adkins denied that
Dr. McIlwain had released him to return to work and indicated
that because of his heart and leg, he would be unable to return
to his pre-injury work. 2 Adkins described his duties as a
1
Apparently, the VP #3 mine had shut down by that time, and
Adkins had been laid off.
2
In April of 1998, Adkins suffered from a myocardial
infarction and has since been treating with a cardiologist.
However, other than its apparent effect in slowing Adkins'
recovery, his heart condition is not an issue on appeal.
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motorman as requiring him to load and unload supply trucks which
came into various areas of the mines. To do this, Adkins was
required to perform "quite a bit" of walking "up and down," to
walk "stooped over" in some places, to bend, to lift "all sorts
of things" such as steel, crib blocks, cement, mortar mix and
other supplies, and to operate "scoops" by foot controls.
Shortly after the deposition, Adkins underwent an
independent medical examination, at the request of Island Creek,
which was performed by Dr. William E. Kennedy. Dr. Kennedy
stated that there was a "very good correlation" between his
objective findings with respect to Adkins' ankle and his
complaints of continued ankle pain, weakness and loss of motion.
He gave Adkins a permanent partial impairment rating of his
right lower leg of 11%, and advised Adkins to avoid excessive
stair climbing, ladder climbing, kneeling, squatting, crawling,
or working over rough terrain, or slippery or sloping surfaces,
in his future activities of daily living and employment.
Subsequently, Island Creek sent a job description for the
position of motorman and Adkins' deposition transcript to
Dr. McIlwain, and asked him to provide an opinion as to whether
Adkins could perform the duties described. Dr. McIlwain
responded by letter on December 7, 1999, stating in relevant
part:
I have reviewed the deposition of Mr. James
Adkins . . . regarding his job description.
I have also reviewed the job description
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that was sent to me by the employer via
Employers Service Corporation.
* * * * * * *
I have compared that testimony to the job
description sent to me by Employers Service
and my evaluation of September 15, 1999
which demonstrates the patient had an
excellent examination.
* * * * * * *
It is still my contention and my opinion
that Mr. Adkins can, in fact, do the job
description that I have been supplied.
The actual job description provided to Dr. McIlwain was never
submitted to the commission and is not part of the record on
appeal.
During the hearing, Adkins again denied that McIlwain had
released him to return to work and maintained that he could not
perform his pre-injury job due to his ankle problems.
Specifically, he testified that he could not climb stairs, as
required about every 90 days, bend, squat and kneel, which was
required "quite a bit," and could not walk on the "up and down,
rough" surfaces of the mine, which were often slippery and
sloped. A former Assistant Mine Superintendent confirmed that
Adkins' description of the job was relatively accurate and
confirmed that kneeling and squatting were required, although
infrequently, and that the floor surface of the mine was uneven,
wet, and slippery in places.
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Based on this evidence, Deputy Commissioner Stevick granted
Island Creek's application. However, on review of the deputy
commissioner's decision, the full commission reversed, finding
that Island Creek had failed to meet its burden in support of
the application. The full commission noted that there was no
evidence of a change in Adkins' physical condition between the
August 23, 1999 report prepared by Dr. McIlwain and the
September 15, 1999 report, and gave greater weight to the August
23 report, concluding that Dr. McIlwain's findings in the August
23 report were similar to the findings made by Dr. Kennedy.
Accordingly, the commission held that Island Creek had failed to
meet its burden in establishing that Adkins could kneel, crawl,
squat, lift, and walk on the uneven surfaces as the job
required.
The commission gave little weight to Dr. McIlwain's letter
concerning the job description stating:
[W]hile recognizing that Dr. McIlwain is
[Adkins'] treating physician, we do not
accord great weight to his opinion on this
issue. In his report of December 1999, he
expressly stated, after reviewing both
[Adkins'] deposition and the job description
provided by the employer, that [Adkins]
could perform the duties reflected in the
job description he was provided. He offered
no opinion as to whether [Adkins] was
capable of performing his pre-injury job
duties as reflected in his deposition
testimony.
On appeal, Island Creek contends that the commission erred
in giving greater weight to the medical opinion of Dr. Kennedy,
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because Dr. McIlwain was Adkins' treating physician. Island
Creek also argues that the commission erred in disregarding the
letter from Dr. McIlwain concerning the employer's job
description and Adkins' deposition testimony.
"General principles of workman's compensation law provide
that in an application for review of an award on the ground of
change in condition, the burden is on the party alleging such
condition to prove his allegation 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) (citation omitted). Thus,
it was the burden of Island Creek to prove, by a preponderance
of the evidence, that Adkins was "able to carry out all of the
duties of his pre-injury employment . . . ." Crystal Oil Co. v.
Dotson, 12 Va. App. 1014, 1021, 408 S.E.2d 252, 256 (1991)
(emphasis added). "The commission has held that, in determining
whether an injured employee can return to his or her pre-injury
employment duties the commission does not look at how the duties
could ideally be performed, but rather, how the duties were
actually performed." Clinchfield Coal Co. v. Parrott, 22 Va.
App. 443, 446-47, 470 S.E.2d 597, 598-99 (1996) (citation
omitted) (emphasis in original).
To meet this burden, Island Creek presented Dr. McIlwain's
September 15, 1999 examination report, as well as his December
1999 opinion letter, stating that Adkins was capable of
returning to his pre-injury work. Conversely, Adkins relied
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upon his deposition testimony describing the nature of his
duties, as well as Dr. Kennedy's opinion of November 15, 1999,
concluding that Adkins could not perform all of the duties
required by his pre-injury position.
"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, 214 (1991). In its role as fact finder, "[t]he
probative weight to be accorded [medical] evidence is for the
Commission to decide," and if a portion of the medical evidence
"is in conflict with other medical evidence, the Commission is
free to adopt that view which is most consistent with reason and
justice." Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5,
526 S.E.2d 267, 269 (2000) (citation omitted). Nevertheless,
"great weight should be given to the evidence of an attending
physician." Bassett Burkeville Veneer v. Slaughter, 21 Va. App.
575, 580, 466 S.E.2d 127, 129 (1996) (citing C.D.S. Constr.
Servs. v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236, 241
(1978)).
In reversing the decision of the deputy commissioner, the
full commission relied heavily upon the opinion of Dr. Kennedy
and refused to lend "great weight" to the opinion of
Dr. McIlwain, based on its conclusion that Dr. McIlwain failed
to consider the job duties described by Adkins in his
deposition, in conjunction with those set forth in the job
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description provided to him by the employer. However, the
commission was incorrect in concluding that Dr. McIlwain failed
to consider Adkins' deposition testimony. In fact, Dr. McIlwain
clearly stated that he considered both the job duties set forth
in the deposition testimony, as well as the duties described in
the job description.
Thus, the commission failed to articulate credible reasons
for giving little probative weight to the opinions of
Dr. McIlwain. Furthermore, based on this record, we cannot
determine whether, without this factual error, the commission
would have relied as heavily upon Dr. Kennedy's testimony versus
that of Dr. McIlwain, Adkins' treating physician.
Accordingly, we reverse the decision of the commission and
remand the matter with direction to the commission to reconsider
the merits, while lending the appropriate probative weight to
Dr. McIlwain's opinion of December 7, 1999.
Reversed and remanded.
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