Collegiate Funding Services, LLC and The First Liberty Insurance Company v. Marlo Jean Conway

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and McClanahan
Argued at Richmond, Virginia
COLLEGIATE FUNDING SERVICES, LLC AND
THE FIRST LIBERTY INSURANCE CORPORATION
MEMORANDUM OPINION∗ BY
v. Record No. 2391-06-2 JUDGE ELIZABETH A. McCLANAHAN
APRIL 17, 2007
MARLO JEAN CONWAY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Roger L. Williams (John T. Cornett, Jr.; Williams & Lynch, on
brief), for appellants.
Wesley G. Marshall for appellee.
Collegiate Funding Services, LLC and The First Liberty Insurance Corporation
(collectively Collegiate Funding) appeal a decision of the Workers’ Compensation Commission
awarding benefits to Marlo Jean Conway (Conway). For the reasons that follow, we affirm the
decision of the commission.
I. BACKGROUND
On appeal from a decision of the commission, “we view the evidence in the light most
favorable to the party prevailing below” and grant that party the benefit of all reasonable
inferences. Tomes v. James City (County of) Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312,
315 (2002) (citation omitted); see also Grayson (County of) Sch. Bd. v. Cornett, 39 Va. App.
279, 281, 572 S.E.2d 505, 506 (2002). Conway was employed by Collegiate Funding on May
23, 2004, as a financial loan specialist when she sustained a compensable injury to her left hand.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On the date of the accident, a screw came out of her chair causing her to fall and land on her left
elbow and one of the fingers on her left hand, with her wrist extended. She was diagnosed with a
contusion sprain to her finger. Conway returned to her job, which involved typing applications
and notes into the computer system, but she was only able to type with her right hand and was
subsequently terminated. The deputy commissioner found that she was not terminated for just
cause but was unable to adequately perform the employment offered by Collegiate Funding due
to her compensable injury and awarded various periods of temporary total and temporary partial
disability benefits. That award was upheld by the commission and was not appealed.
Conway was unemployed for a period of time following her termination from Collegiate
Funding. She then obtained a series of light duty positions and was employed as a bus monitor
with the King George school system when Collegiate Funding filed an application alleging that
Conway was released to pre-injury work in May 2005. Conway filed additional claims for
benefits and argued that she remained under restrictions and was unable to return to her
pre-injury duties.
According to her medical records, Conway experienced numbness, tingling, and
discomfort in her left hand following the accident. In January 2005, her treating physician,
Dr. Constantine, noted that her ulnar nerve irritation had improved and he was “boggled” as to
why she continued to have symptoms. Conway underwent a functional capacity evaluation on
March 4, 2005, which indicated that she was able to do light duty work lifting less than 20
pounds and able to type 15 to 20 words a minute. On May 10, 2005, Dr. Constantine released
Conway to her pre-injury job. His record indicates she was treating with Dr. Leibovic, a hand
surgeon, to whom she was referred by Dr. Constantine. A letter dated September 29, 2005 by
Dr. Constantine reiterates that he released Conway to her normal duty as a loan officer in May
2005, she had reached maximum medical improvement, and he did not see a reason for an
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impairment rating. Dr. Constantine encouraged her to continue to follow up with Dr. Leibovic as
her primary hand surgeon if she disagreed since he could not delineate what was causing her
symptoms.
Conway saw Dr. Leibovic on May 3, 2005. He noted she began having numbness and
tingling in her hand and arm after her accident and had persistent pain and discomfort since the
accident. He diagnosed ulnar neuropathy (diseased ulnar nerve) probably at her wrist but
possibly at her elbow. On December 8, 2005, Dr. Leibovic determined that Conway was
disabled from her pre-injury occupation. He directed limited use of her left hand, no repetitive
movements, and lifting no more than 5 pounds. Dr. Leibovic testified at his deposition her ulnar
neuropathy was “probably” related to her accident but he needed to do further investigation to
determine what was causing the ulnar neuropathy. Dr. Leibovic limited Conway to an average
of less than about 1200 keystrokes per hour for both hands. He also testified that he would need
an ergonomic assessment of her work environment to determine if she could perform her
pre-injury duties.
Based on Dr. Constantine’s release of Conway to full duty as of May 10, 2005, the
deputy commissioner terminated the claimant’s benefits under her prior award. Conway did not
appeal that decision. The deputy commissioner further found, based on the opinion of
Dr. Leibovic, Conway was unable to perform her pre-injury job as of December 8, 2005. The
deputy commissioner awarded her continuing temporary partial disability benefits. That award
was upheld by the commission. Collegiate Funding appealed the commission’s decision
asserting that Conway failed to prove her disability was causally related to her accident.
II. ANALYSIS
On appeal, we defer to the commission in its role as fact finder. VFP, Inc. v. Shepherd,
39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002). “If supported by credible evidence, the
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factual findings of the commission are binding on appeal.” Tomes, 39 Va. App. at 430, 573
S.E.2d at 315 (citations omitted). The commission’s “conclusions upon conflicting inferences,
legitimately drawn from proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g,
Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983).
Collegiate Funding argues that Conway failed to prove “her current disability was
causally related to her compensable accident.”1 “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)
(citation omitted). There was credible evidence to support the commission’s finding that
Conway’s disability was causally related to her compensable accident. Her medical records
reflected continuing problems with her left hand and elbow since the date of the accident.
Dr. Leibovic testified that her disability was “probably” related to her accident. “A doctor’s
statement that a certain condition is probably connected to the injury means there is a reasonable
likelihood of causation, which ‘is sufficient to permit a trier of fact to accord the statement
probative weight.’” Marriott Int’l, Inc. v. Carter, 34 Va. App. 209, 215, 539 S.E.2d 738, 741
(2001) (quoting Cook v. City of Waynesboro Police Dep’t, 225 Va. 23, 30, 300 S.E.2d 746, 749
(1983)).
1
Collegiate Funding also argues in the body of the argument section of its brief Conway
failed to prove she could not perform her pre-injury employment and she failed to market her
residual capacity. However, Collegiate Funding did not include in its brief a question presented
related to either one of these arguments. The sole issue contained in the Question Presented is
whether the “[c]ommission erred in finding that the claimant proved that the medical restrictions
imposed upon her by Dr. Leibovic on December 8, 2005 were causally related to her
compensable accident; and in awarding the claimant wage indemnity benefits as of such date.”
We will not address the additional arguments on appeal. See Rule 5A:20(c)-(e); Hillcrest Manor
Nursing Home v. Underwood, 35 Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001) (finding
“an issue [was] not expressly stated among the ‘questions presented,’ . . . we, therefore, decline
to consider [it] on appeal”).
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In view of such credible evidence, we will not disturb this factual finding on appeal.
Accordingly, we affirm the commission’s decision.
Affirmed.
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