Ralph Weldon Ward, Jr. v. Tidewater Sand Co.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RALPH WELDON WARD, JR.
v. Record No. 1430-96-1 MEMORANDUM OPINION *
PER CURIAM
TIDEWATER SAND COMPANY NOVEMBER 26, 1996
AND
AMERICAN INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ralph Ward, Jr., pro se, on brief).
(Joseph C. Veith, III; Montedonico, Hamilton &
Altman, on brief), for appellees.
Ralph Weldon Ward, Jr. contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that (1) he was totally disabled from any gainful employment
after March 7, 1995; and (2) he made a good faith effort to
market his residual capacity after March 7, 1995. 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. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"General principles of workman's compensation law provide that
'[i]n an application for review of any award on the ground of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 Ward's
evidence sustained his burden of proof, the commission's findings
are binding and conclusive upon us. Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
I.
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). Based upon Ward's inconsistent behavior and unresponsive
and evasive manner of answering employer's clearly formulated and
relevant questions during the hearing, the deputy commissioner
found Ward was not a credible witness. The full commission
agreed with and adopted the deputy commissioner's credibility
determination. Based upon this record, the commission, as fact
finder, was free to reject Ward's testimony concerning the extent
of his disability. This Court will not substitute its judgment
for that of the trier of fact, which had the opportunity to
observe the witnesses and evaluate their credibility. Id. at
382, 363 S.E.2d at 437.
On March 7, 1995, Dr. Sidney S. Loxley, Ward's treating
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orthopedic surgeon, opined as follows:
[Mr. Ward] remains significantly symptomatic.
He has tried on several occasions to engage
in various vocational activities but he is
unfitted by training, education, or
experience for anything except laboring type
work. His back and lumbosacral nerve plexus
do not tolerate laboring type activities.
* * * * * * *
It is no longer possible for Mr. Ward to
engage in laboring type activities or
significant physical exertion. Therefore, I
believe he is 100% disabled and merits a
permanent physical impairment rating of 100%.
The commission held that Dr. Loxley's opinion did not
establish that Ward was totally disabled from performing all
types of gainful employment. In so ruling, the commission found
as follows:
Dr. Loxley . . . asserted that [Ward] by
virtue of his training, education and
experience is unfit for anything but heavy
labor. The Deputy Commissioner correctly
noted that was an opinion that might be
entertained from a vocational expert, but
there is no evidence that it is one Dr.
Loxley is qualified to render. We do not
accept the physician's apparent presumptions
that untrained and cognitively disadvantaged
workers may be employed only as laborers,
since such an opinion without evidentiary
foundation is not within the medical
expertise of the physician and flies in the
face of human experience.
The totality of the medical evidence
shows that [Ward's] occupational back injury
was aggravated by continuing work with the
City of Chesapeake, which demonstrates that
such work was unsuitable. However, the
medical evidence also establishes that the
claimant's symptoms improved with medication
and avoidance of such work.
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The commission's findings are supported by the medical
evidence, which "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,
215 (1991).
Based upon the commission's credibility determination and
the lack of medical evidence establishing that Ward's March 1989
compensable back injury prevented him from performing all types
of gainful employment, we cannot say as a matter of law that
Ward's evidence sustained his burden of proving total disability.
At best, Ward's evidence proved partial disability.
II.
In order to establish entitlement to benefits, a partially
disabled employee must prove that he has made a reasonable effort
to procure suitable work but has been unable to do so. Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 101 (1987). Because Ward stipulated before the commission
that he engaged in no marketing efforts after leaving his job
with the City of Chesapeake, we cannot find that the commission
erred in denying his claim for compensation benefits.
For these reasons, we affirm the commission's decision.
Affirmed.
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