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COBB v. SHAW PAINT & WALL PAPER COMPANY, INC., et al.


COBB v. SHAW PAINT &
WALL PAPER COMPANY, INC., et al.

(unpublished)


DECEMBER, 9, 1997
Record No. 1065-97-1

KENNETH E. COBB

v.

SHAW PAINT & WALL PAPER COMPANY, INC.
AND
LIBERTY MUTUAL INSURANCE COMPANY

Present: Judges Benton, Coleman and Willis

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Kenneth E. Cobb, pro se, on brief).

(Bradford C. Jacob; Taylor & Walker, on brief), for
appellees.


Kenneth E. Cobb contends that the Workers’ Compensation
Commission erred in finding that he was not entitled to (1) a
reinstatement of compensation benefits, and (2) a change in
treating physicians. Cobb also requests an award for lost
earnings, partial permanent disability benefits, and pain and
suffering. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission’s decision. See
Rule 5A:27.

I.

"General principles of workman’s compensation law provide
that ‘[i]n 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)). On appeal, we view the evidence in the
light most favorable to the prevailing party below. See R.G.
Moore Bldg. Corp. v. Mullins
, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). Unless we can say as a matter of law that
Cobb’s evidence sustained his 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 Cobb’s evidence did not prove that the employer
forged Cobb’s signature on the Agreed Statement of Fact and that
Cobb was not entitled to a reinstatement of compensation
benefits, the commission found as follows:

After considering [Cobb's] testimony, we are unpersuaded, as
was the Deputy Commissioner, that [Cobb] did not sign the Agreed
Statement of Fact. We therefore find no evidence of imposition or
fraud.

We do find evidence of mutual mistake, because the wrong
reason for termination of the award was checked on the Agreed
Statement of Fact. Nonetheless, in light of the unequivocal
release to full unrestricted duty on December 8, 1995, which was
never retracted and was in fact reiterated on August 1, 1996, by
Dr. Payne, we find [Cobb] is not entitled to benefits after
December 8, 1995. We therefore conclude that the Deputy
Commissioner properly declined to set aside the termination of
[Cobb's] award.

Based upon the testimony of Cobb and Matthew Thompson, the
insurance adjuster, the commission could find that the parties
signed the Agreed Statement of Fact. Because credible evidence
supports that finding, it is conclusive and binding on appeal. Island
Creek Coal Co. v. Breeding
, 6 Va. App. 1, 12, 365 S.E.2d 782,
788 (1988). Furthermore, the commission could reasonably infer
from the evidence that when the statement was signed the
incorrect box had been checked, indicating that Cobb had returned
to pre-injury work rather than that he had been released to
return to pre-injury work. "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 Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988). Furthermore, the undisputed
medical records of Dr. Loel Z. Payne, the treating orthopedist,
proved that as of December 8, 1995, Dr. Payne had released Cobb
to return to his pre-injury work without restrictions.

Because the evidence supports the commission’s findings, they
are binding and conclusive upon us. See id. In view
of those findings, we cannot say as a matter of law that the
commission erred in refusing to reinstate Cobb’s compensation
benefits.

II.

Whether a treating physician has released or abandoned his
patient generally is determined by the express intent of the
physician. In some cases, the total circumstances must be
analyzed in order to determine whether the discharge, release, or
abandonment of the patient was intended. This is a factual
determination that the commission must make. See Jensen
Press v. Ale
, 1 Va. App. 153, 157, 336 S.E.2d 522, 524
(1985).

In ruling that Cobb was not entitled to change his treating
physicians, the commission found as follows:

Dr. Payne, [Cobb's] treating physician, is an orthopedic
specialist who has appropriately evaluated and treated [Cobb's] injury. [Cobb's] condition progressed to the point where Dr.
Payne released him to full, unrestricted duty. Although Dr. Payne
has stated that he has no orthopedic treatment for [Cobb], he has
advised [Cobb] to return as needed, and has suggested that [Cobb] might obtain relief from his muscle spasms through chiropractic
treatment. [Cobb] must continue to seek treatment from Dr. Payne
and his referrals.

The commission’s findings are amply supported by the medical
records and will not be disturbed on appeal. Thus, we cannot find
as a matter of law that the commission erred in denying Cobb’s
request for a change in treating physicians.

III.

Cobb did not make a claim before the commission for $33,280 in
lost earnings, permanent partial disability benefits, or for
$50,000 in pain and suffering. Accordingly, we will not address
those theories of recovery for the first time on appeal. Rule
5A:18; see Kendrick v. Nationwide Homes, Inc., 4
Va. App. 189, 192, 355 S.E.2d 347, 349 (1987).

For these reasons, we affirm the commission’s decision.

Affirmed.

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

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