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.
CLINCHFIELD COAL COMPANY
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Argued at Salem, Virginia
Record No. 1463-03-3
CLINCHFIELD COAL COMPANY
ROGER LEWIS JORDAN
BY CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 25, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Anne Musgrove (Ramesh Murthy; Lisa Frisina Clement; PennStuart,
on brief), for appellant.
Paul L. Phipps (D. Allison Mullins; Lee & Phipps, P.C., on
Clinchfield Coal Company (employer), contends the Workers’
Commission (commission) erred in finding that Roger Jordan
(claimant) proved a change in
condition and was entitled to an award of temporary total
disability benefits. Finding no error,
we affirm the commission’s decision.
"On appeal, we view the evidence in the light most
favorable to the claimant who
prevailed before the commission." Allen & Rocks, Inc.
v. Briggs, 28 Va. App. 662, 672, 508
S.E.2d 335, 340 (1998) (citations omitted). "‘Decisions
of the commission as to questions of
fact, if supported by credible evidence, are conclusive and
binding on this Court.’" WLR Foods
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)
(quoting Manassas Ice & Fuel Co.
v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)).
"Where reasonable inferences
may be drawn from the evidence in support of the commission’s
factual findings, they will not
be disturbed by this Court on appeal." Hawks v. Henrico
County School Board, 7 Va. App. 398,
404, 374 S.E.2d 695, 698 (1988). "The commission, like any
other fact finder, may consider
both direct and circumstantial evidence in its disposition of a
claim." VFP, Inc. v. Shepherd, 39
Va. App. 289, 293, 572 S.E.2d 510, 512 (2002). "In
determining whether credible evidence
exists, [this Court will] not retry the facts, reweigh the
preponderance of the evidence, or make
its own determination of the credibility of witnesses."
Wagner Enters., Inc. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted).
"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." Id.
So viewed, the evidence proved that on October 21, 1999,
claimant, a roof bolter, twisted
his lower back while straightening a roof bolt. Employer
accepted the claim and paid benefits
accordingly. Claimant missed six days at the outset of his
injury and later was out of work July
31, 2000 through September 28, 2000, and October 7, 2000 through
October 14, 2000.
Claimant initially treated with his family physicians, Dr.
Samina Yousuf and Dr. Simon
Pennings. In February, 2000, when his symptoms increased, Dr.
Yousuf referred him to
Dr. Neal Jewell, an orthopedist. Dr. Jewell diagnosed acute
lumbar sprain, lumbar spondylosis
at L5-S1 and degenerative L5-S1 disc without radiculopathy. He
treatment. Claimant had little success with the course of
treatment but returned to light duty
work. On October 5, 2000, the claimant’s hauler, a vehicle
used to transport coal, went over a
dip or a hole and bounced claimant around while he was in a
reclining position. His back pain
increased, and he was taken to the emergency room that night. In
Dr. Jewell’s October 6, 2000
report, he quotes claimant as stating, "I never had any
trouble until that night [the night of the
In his November 6, 2000 report, Dr. Jewell states,
I think we are dealing with aggravation of a significant
degree of lumbar spondylosis and I think it is this underlying
spondylosis that is contributing to the persistence of his
In addition, he continues to express the opinion that he is
unable to return to work and I think this attitude is making it
difficult to encourage him back to regular work activities.
Finally, in his December 7, 2000 report, Dr. Jewell writes,
"In response to inquiries from
[employer’s nurse], I do feel the patient, as far as his acute
back injury is concerned, has reached
pre-injury status, and, as I stated previously, I believe the
majority of his continuing symptoms
are related to his underlying or pre-existent lumbar
Claimant saw Dr. Jewell again March 5, 2001 and reported an
increase in his symptoms.
Dr. Jewell sent him for an MRI and took him off work for one
month. He discussed the results
of the MRI with claimant on March 12, 2001 and suggested facet
blocks. He did not believe
claimant was a surgical candidate. His office note is unclear
about claimant’s work status, but
his Attending Physician’s Statement (APS), completed at the
same time, removed him from
work from March 5, 2001 to "indefinite." The APS also
stated claimant’s diagnosis was
degenerative lumbar disc disease, lumbar sprain, resolved, and
in response to the question "Is
this condition due to injury or sickness arising out of patient’s
employment?" Dr. Jewell checked
the block marked "YES" and wrote "acute lumbar
sprain secondary to work injury that appears
to be resolved. Continuing pain secondary to degenerative disc
In April, 2001, Dr. Yousuf referred claimant to Dr. Ken Smith, a
treated with Dr. Smith on four occasions. He had an initial
consult on April 2, 2001. On April 9,
2001, Dr. Smith diagnosed claimant with low back pain of unknown
etiology and referred
claimant for myelographic studies and a CT scan. The CT scan
showed severe osteoarthritis
anterolisthesis, and stenosis. The myleogram confirmed the CT
scan findings. On April 20,
2001, Dr. Smith discussed various treatment options with
claimant including surgery. Claimant
elected to continue conservative treatment. In response to
claimant’s counsel’s questions,
Dr. Smith opined claimant’s problems were related to his
injury of October 21, 1999 and that
claimant was totally incapacitated from work since March 4,
The evidence in the record also included medical reports from
physicians, Dr. Yousuf and Dr. Pennings, that pre-dated the
injury. None of those records show
any history of back pain or back problems.
Claimant filed a change-in-condition application requesting
temporary total disability
benefits beginning March 5, 2001 and continuing. The deputy
commissioner relied on
Dr. Jewell’s opinion that claimant’s symptoms were from
pre-existing or underlying spondylosis
and, therefore, claimant failed to prove a change in condition.
The commission, in reversing the
deputy commissioner, held:
From this record, we find that claimant has established that his
back pain is related to his October, 1999 injury by accident.
claimant had no back pain or symptoms prior to the accident.
Indeed, medical records for other conditions prior to the
confirm that he had no back complaints whatsoever. To the extent
that he had spondylosis or degenerative disc disease, this was
completely undocumented and [asymptomatic]. Ever since the
accident, the claimant has had persistent low back pain. This is
documented thoroughly in medical records throughout the year
2000 and into 2001. To his credit, the claimant continued to
attempt to work, which continued to exacerbate his pain. Given
this uncontradicted history, we are simply not persuaded by
Dr. Jewell’s suggestion that these back problems relate only
pre-existing spondylosis. We are satisfied that Dr. Smith’s
opinion, although not explained, is correct.
The employer appealed that decision to this Court, however, we
remanded on July 9, 2002
stating the appeal was interlocutory because the commission had
remanded it to the deputy
commissioner for entry of an award consistent with their opinion
and that had not been
completed. Upon receipt of our July 9, 2002 opinion, the deputy
commissioner issued an award
consistent with the commission’s opinion which the employer
then appealed to the commission.
The commission issued another opinion and held:
On Review, we note that the parties are familiar with the
history of this case. On April 23, 2003, the Commission found
the claimant had proven a change in condition and that he was
entitled to an award of temporary total disability benefits. We
were persuaded by Dr. Smith’s opinion. On remand, the Deputy
Commissioner accepted the Commission’s reliance on this
opinion and awarded compensation benefits beginning April 2,
2001, and continuing. We find no error in this determination.
Employer appealed this decision.
Employer contends the commission erred in finding claimant was
entitled to temporary
total disability benefits as a result of a change in condition.
Employer argues that the
commission lacked sufficient, credible evidence and failed to
give the treating physician’s
opinion the appropriate weight. We disagree.
By statute, a request for review empowers the commission to hear
the case de novo, see
Code ? 65.2-705; Goodyear Tire & Rubber Co. v. Pierce, 5
Va. App. 374, 382-83, 363 S.E.2d
433, 438 (1987). "Medical evidence is not necessarily
conclusive, but is subject to the
commission’s consideration and weighing." Hungerford
Mechanical Corp. v. Hobson, 11
Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). "[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). As fact finder, "the
probative weight to be accorded [medical]
evidence is for the Commission to decide," and if a portion
of the medical evidence "is in
conflict with other medical evidence, the Commission is free to
adopt that view which is most
consistent with reason and justice." Georgia-Pacific Corp.
v. Robinson, 32 Va. App. 1, 5, 526
S.E.2d 267, 269 (2000) (citation omitted). Nevertheless, "a
great weight should be given to the
evidence of an attending physician." Bassett Burkeville
Veneer v. Slaughter, 21 Va. App. 575,
580, 466 S.E.2d 127, 129 (1996) (citing C.D.S. Constr. Servs. v.
Petrock, 218 Va. 1064, 1071,
243 S.E.2d 236, 241 (1978)). "[W]hen it appears . . . that
the [treating physician’s] diagnosis is
shaded by doubt, and there is medical expert opinion contrary to
the opinion of the attending
physician, then the trier of the fact is left free to adopt that
view which is most consistent with
reason and justice." Bristol Builders’ Supply Co. v.
McReynolds, 157 Va. 468, 471, 162 S.E. 8,
In the instant case, credible evidence supports the commission’s
finding that claimant is
disabled from his employment due to his October 21, 1999 injury.
The commission found that
had no back pain or symptoms prior to the accident. Indeed,
medical records for other conditions prior to the accident
that he had no back complaints whatsoever. To the extent that he
had spondylosis or degenerative disc disease, this was
undocumented and asymptomatic. Ever since the accident, the
claimant has had persistent low back pain.
Employer conceded at hearing that both Dr. Smith and Dr. Jewell
were claimant’s treating
physicians. The medical reports from both Dr. Smith and Dr.
Jewell document ongoing and
increasing symptoms from October 21, 1999 to the present. The
commission was not required to
accept Dr. Jewell’s opinion and properly weighed it with the
report of the other treating
physician, Dr. Smith. The commission’s decision is supported
by credible evidence and for the
foregoing reasons, we affirm the decision of the commission.
Code ? 17.1-413 this opinion is not designated for publication.