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COASTAL MART, INC., #812, et al. v. WAMPLER




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COASTAL MART, INC., #812, et al.

v.

WAMPLER


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

GUARANTY ASSOCIATION

v.

RANDY L. WAMPLER

 

MEMORANDUM OPINION[1]
PER CURIAM

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’
Compensation

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
opinions

must be decided by the commission." Penley v. Island Creek
Coal

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
post-concussion

headaches." The commission entered an award for temporary
total

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
in

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
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).

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.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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