NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
S.B. COX READY MIX, INC., et al.
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
WAYNE J. SAUNDERS
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’
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.
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.
raised by conflicting medical opinions must be decided by the
commission." Penley v. Island Creek Coal Co., 8 Va. App.
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.
Code ? 17.1-413, this opinion is not
designated for publication.