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COASTAL MART, INC., #812, et al.
COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, McClanahan and Senior Judge Coleman
Record No. 0763-03-3
COASTAL MART, INC., #812 AND
RELIANCE NATIONAL INDEMNITY COMPANY/
VIRGINIA PROPERTY & CASUALTY INSURANCE
RANDY L. WAMPLER
SEPTEMBER 16, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(John C. Johnson; Frith Anderson & Peake,
P.C., on briefs), for appellants.
(P. Heith Reynolds; Wolfe, Williams &
Rutherford, on brief), for appellee.
Coastal Mart, Inc., #812 and its insurer (hereinafter
referred to as "employer") contend the Workers’
Commission erred in finding that Randy Wampler (claimant) proved
he was totally disabled after July 5, 2001, as a result of his
compensable April 13, 2000 injury by accident. Upon reviewing
the record and the parties’ briefs, 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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Moreover, "[q]uestions raised by conflicting medical
must be decided by the commission." Penley v. Island Creek
Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
Claimant slipped and fell at work on April 13, 2000. The
parties stipulated to a compensable injury by accident causing
"post-traumatic right olecranon bursitis and
headaches." The commission entered an award for temporary
disability (TTD) benefits from April 14 through May 30, 2000,
and June 4 through June 11, 2000. On March 30, 2001, claimant
filed a change-in-condition application seeking TTD benefits
from March 20, 2001 and continuing.
Dr. Michael S. Dew, a neurologist who began treating
claimant on March 20, 2001, opined on July 5, 2001, in response
to a questionnaire from claimant’s counsel, that claimant
continued to be totally disabled as a result of chronic
post-traumatic headaches averaging six to seven days per week.
Dr. Dew opined that claimant could engage in activities at his
own pace and duration.
Dr. Jim Brasfield, who performed an independent medical
examination of claimant on June 28, 2001, at employer’s request,
questioned claimant’s "alleged" and
"unwitnessed" injury, even
though the parties had stipulated that a compensable accident
occurred resulting in post-concussion headaches and the
commission had previously entered an award. Dr. Brasfield
opined that claimant could work.
In ruling that claimant met his burden of proving
entitlement to an award of TTD benefits commencing March 20,
2001 and continuing, the commission, as fact finder, accepted
the opinion of the treating neurologist, Dr. Dew, and rejected
the contrary opinion of Dr. Brasfield, who examined claimant on
one occasion. "'[W]hen an attending physician is positive
his diagnosis . . . , great weight will be given by the courts
to his opinion.’" Pilot Freight Carriers, Inc. v. Reeves, 1
Va. App. 435, 439, 339 S.E.2d 570, 572 (1986) (citations
omitted). Dr. Dew’s medical records and unequivocal opinion
provide credible evidence to support the commission’s finding
that claimant remained totally disabled after July 5, 2001.
"The fact that there is contrary evidence in the record is
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).
We note that, contrary to employer’s contention, neither
the record, the deputy commissioner’s opinion, nor the full
commission’s opinion suggest that they considered the additional
treatment records dated June 26, 2001, July 31, 2001, September
5, 2001, November 8, 2001, December 10, 2001, February 21, 2002,
and May 2, 2002, submitted by claimant upon remand at the June
11, 2002 hearing. Thus, employer’s argument that the full
commission considered those records or that employer was in any
manner denied its right to cross-examine Dr. Dew with respect to
those reports is without merit. We also note that the
commission explicitly provided employer the opportunity to
contest the validity of Dr. Dew’s July 5, 2001 report and to
present rebuttal evidence on remand; however, employer chose not
to do so.
For these reasons, we affirm the commission’s decision.
Code ? 17.1-413, this opinion is not
designated for publication.