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S.B. COX READY MIX, INC., et al. v. SAUNDERS




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S.B. COX READY MIX, INC., et al.

v.

SAUNDERS


COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, McClanahan and Senior Judge Coleman

Record No. 1080-03-2

S.B. COX READY MIX, INC. AND

CLARENDON NATIONAL INSURANCE COMPANY

v.

WAYNE J. SAUNDERS

 

MEMORANDUM OPINION[1]
PER CURIAM

SEPTEMBER 16, 2003

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Robert C. Baker, Jr.; Dobbs & Baker, on

brief), for appellants.

(Gregory O. Harbison; Geoffrey R. McDonald &

Associates, on brief), for appellee.

S.B. Cox Ready Mix, Inc. and its insurer (hereinafter

referred to as "employer") contend the Workers’
Compensation

Commission erred in finding that it failed to prove that

Wayne J. Saunders (claimant) was fully capable of performing all

of the duties of his pre-injury work as of May 20, 2002. 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.

"General principles of workman’s compensation law provide

that ‘in an application for review of any award on the ground of

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

employer’s evidence sustained its burden of proof, the

commission’s findings are binding and conclusive upon us. See

Tomko v. Michael’s Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

In ruling that the medical evidence showed that claimant

might be capable of light-duty employment, but that employer

failed to establish that claimant could fully perform his

pre-injury work, the commission found as follows:

[E]mployer’s first examining IME physician,

Dr. [E. Claiborne] Irby, [Jr.,] opined that

the claimant had reached maximum medical

improvement by November 20, 2001, and that,

as of January 15, 2002, the claimant could

not lift more than ten pounds. Dr. Irby

believed that the claimant could drive but

noted further that the claimant could sit

only "intermittently"—thereby implying that

the claimant could not sit, and drive, for

long periods of time.

The opinion of Dr. [J. Kim] Harris with

respect to the claimant’s physical

capabilities and ability to drive does not

differ substantially from the opinion of

Dr. Irby. Dr. Harris has indicated that the

claimant could work "part-time" and drive

for short periods of time but has stated

further, based upon his understanding of the

employer’s business, that the claimant’s

ability to work "light duty" for the

employer is unrealistic.

The Commission traditionally gives

greater weight to the unequivocal opinion of

a claimant’s treating physician than to the

opinion of an employer’s examining

physician-in this case Dr. [Douglas A.]

Wayne. We find no reason not to apply this

principle in the present case, particularly

when, as explained above, the employer’s

other expert has also recommended

restrictions with respect to the claimant’s

ability to work. We note further that

Dr. Wayne’s opinion with respect to the

claimant’s ability to work is based, at

least in part, upon his conclusion that the

claimant exhibited no "objective" symptoms

of radiculopathy. However, there is

objective evidence of the claimant’s

radiculopathy-shown in the claimant’s EMG

taken on December 11, 2001.

Under the circumstances, we are not

persuaded by Dr. Wayne’s opinion that the

claimant is capable of fully performing the

duties of his pre-injury employment.

Instead, we accept the opinion of

Dr. Harris, the claimant’s treating

physician, that the claimant is unable to

return to his full duties as the operator of

a concrete truck.

In its role as fact finder, the commission was entitled to

weigh the medical evidence, accept the opinion of the treating

neurologist, Dr. Harris, and reject the contrary opinion of

Dr. Wayne, who examined claimant on one occasion.
"Questions

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). Thus, based upon this record,

we cannot find as a matter of law that employer’s evidence

sustained its burden of proving claimant was fully capable of

performing all of the duties of his pre-injury employment as of

May 20, 2002.

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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