John C. Harriger v. Pepsi-Cola Gen.Bottlers

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Bumgardner
JOHN CHARLES HARRIGER
MEMORANDUM OPINION *
v. Record No. 2806-97-3 PER CURIAM
APRIL 14, 1998
PEPSI-COLA GENERAL BOTTLERS/WHITMAN
CORPORATION AND BIRMINGHAM FIRE
INSURANCE COMPANY OF PENNSYLVANIA
FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION
(Ginger Jonas Largen; Morefield, Kendrick,
Hess & Largen, on brief), for appellant.
(Ramesh Murthy; Penn, Stuart & Eskridge, on
brief), for appellees.
John Charles Harriger ("claimant") contends that the
Workers' Compensation Commission ("commission") erred in
terminating his compensation benefits on the ground that he was
released to return to his pre-injury employment as of December
19, 1996. 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). "[I]t
is fundamental that a finding of fact made by the Commission is
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
conclusive and binding upon this court on review. A question
raised by conflicting medical opinion is a question of fact."
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986).
The evidence established that on June 5, 1994, claimant
sustained a compensable back injury while working for Pepsi-Cola
General Bottlers ("employer") as a route salesman. On December
19, 1996, Dr. Jeffrey R. McConnell, an orthopedic surgeon,
approved a job description allowing claimant to return to his
pre-injury work without restrictions. On January 3, 1997, Dr.
Robert V. Clampitt, claimant's treating family physician,
deferred to Dr. McConnell's opinion, from an orthopedic
standpoint, regarding claimant's ability to return to work.
Dr. Neil P. Dubner, a psychiatrist who began treating
claimant on August 31, 1995, diagnosed claimant as suffering from
a major depressive disorder and pain disorder caused by his
compensable injury. On January 6, 1997, for the first time, Dr.
Dubner opined that claimant's major depression rendered him
unable to work from a psychiatric standpoint. On March 26, 1997,
Dr. Paul R. Kelley, a neuropsychiatrist, examined claimant at
employer's request. Dr. Kelley opined that claimant did not
suffer from any psychiatric illness. Dr. Kelley noted claimant's
anger and rage directed toward employer, but concluded that this
anger and rage were not due to the work-related accident. Dr.
Kelley concluded that from a psychiatric standpoint, claimant
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could return to work.
The opinions of Drs. McConnell and Kelley constitute
credible evidence to support the commission's finding that
claimant was released to perform his pre-injury work as of
December 19, 1996. "The fact that there is contrary evidence in
the record is of no consequence if there is credible evidence to
support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
The commission, as fact finder, was entitled to accept the
opinions of Drs. McConnell and Kelley and to reject the contrary
opinion of Dr. Dubner. As the commission correctly noted,
although Dr. Dubner had treated claimant since August 1995, he
did not offer an opinion that claimant was disabled until about
two weeks after Dr. McConnell's release. Moreover, the medical
records showed that claimant's psychiatric difficulties could
have been due to factors other than his work injury.
For these reasons, we affirm the commission's decision.
Affirmed.
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