The Service Master Co.etal v. Phyllis Lynn Campbell

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Duff*
THE SERVICE MASTER COMPANY and
ZURICH INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 0370-01-3 PER CURIAM
JUNE 19, 2001
PHYLLIS LYNN (CRUMMETT) CAMPBELL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Steven H. Theisen; Midkiff, Muncie & Ross,
P.C., on brief), for appellant.
(George L. Townsend; Brian J. McNamara;
Chandler, Franklin & O'Bryan, on brief), for
appellee.
The Service Master Company and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that (1) Phyllis Lynn
(Crummett) Campbell proved that she sustained a compensable
change-in-condition causally related to her May 26, 1995 injury
by accident; and (2) Campbell's change-in-condition application
was governed by the two-year statute of limitations contained in
Code § 65.2-708(A), rather than the one-year statute of
limitations contained in Code § 65.2-501. Upon reviewing the
* Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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). We
will uphold the commission's factual findings if they are
supported by credible evidence. James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that Campbell proved she sustained a compensable
change-in-condition and that she filed a timely application, the
commission found as follows:
The record . . . clearly reflects that
[Campbell's] condition has remained painful
and a problem for her since the accident in
1995. Nevertheless, [she] was able to
successfully manage her pain, and continued
to work at full work duties before, during
and after her award of permanency in 1998.
While [she] testified that her painful
condition has not improved over the
intervening years, we also note her
testimony that her condition became worse in
2000, thereby causing her to seek out first
emergency care, and then additional pain
management treatment once the pain became
unbearable. In the opinion of [her]
treating specialist[, Dr. Victor C. Lee],
her pain is both disabling and causally
related to the compensable accident. We
find that these facts reflect a
deterioration of [Campbell's] condition
since the date she was awarded permanency
benefits in 1998, and the two year, "change
in condition" statute of limitation applies.
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We also find that [Campbell] has proven
that her change in condition is causally
related to her compensable accident. Both
Dr. Lee and Dr. [Christopher] Heck have
opined that [Campbell's] ongoing problems
with her left shoulder are causally related
to the compensable accident. We recognize
that Dr. [David S.] Witmer treated
[Campbell] for a longer period of time.
However, he released her from his care in
August 1999, and only examined her on one
occasion after that date. In his IME
report, Dr. Witmer recorded only that
[Campbell's] subjective complaints of pain
could not be objectively verified from an
"orthopedic" standpoint. Nevertheless, he
suggested that a psychological or
psychiatric approach to treatment might be
beneficial, and he did not specifically
opine that her condition was not causally
related to her accident.
"In determining whether credible evidence exists, the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). In its
role as fact finder, the commission was entitled to weigh the
medical evidence. See Penley v. Island Creek Coal Co., 8 Va.
App. 310, 318, 381 S.E.2d 231, 236 (1989) (holding that
"[q]uestions raised by conflicting medical opinions must be
decided by the commission"). The commission accepted the
opinions of Drs. Lee and Heck, while rejecting Dr. Witmer's
opinions. The medical records and opinions of Drs. Lee and
Heck, coupled with the January 6, 2000 emergency room reports,
establish that Campbell's left shoulder pain had worsened and
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that she had suffered an "[a]cute exacerbation of chronic
shoulder pain." This evidence constitutes credible evidence to
support the commission's finding that Campbell's left shoulder
condition deteriorated after the 1998 permanency award and
resulted in a compensable change-in-condition.
On October 20, 1998, Campbell was last paid permanent
partial disability benefits related to her May 26, 1995 injury
by accident. The commission ruled that the two-year statute of
limitations contained in Code § 65.2-708(A) applied to
Campbell's March 28, 2000 change-in-condition application,
rather than the one-year statute of limitations contained in
Code § 65.2-501. We affirm that ruling. Credible evidence
supports the commission's decision that Campbell sustained a
compensable change-in-condition after the date she was awarded
permanency benefits. Accordingly, the commission did not err in
finding that the March 28, 2000 change-in-condition application
was timely filed. See Armstrong Furniture v. Elder, 4 Va. App.
238, 244, 356 S.E.2d 614, 617 (1987) (holding that "the two year
limitation period of Code § [65.2-708] applies to filing an
application for additional workers' compensation benefits
pursuant to a change in condition as defined by Code
§ [65.2-101]").
For these reasons, we affirm the commission's decision.
Affirmed.
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