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MANASSAS PARK CITY SCHOOL BOARD. et al. v. PHIPPS (53876)


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.


MANASSAS PARK CITY
SCHOOL BOARD, et al.

v.

PHIPPS


JULY 17, 2001

Record Nos. 0694-01-4 & 0711-01-4

MANASSAS PARK CITY SCHOOL BOARD AND

VIRGINIA MUNICIPAL GROUP

SELF-INSURANCE ASSOCIATION

v.

REBECCA SUE PHIPPS

v.

MANASSAS PARK CITY SCHOOL BOARD AND

VIRGINIA MUNICIPAL GROUP

SELF-INSURANCE ASSOCIATION

MEMORANDUM OPINION PER CURIAM

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Present: Judges Benton, Humphreys and Retired
Judge Duff
[1]

(Donald R. Morin; Elisabeth M.
Ayyildiz; Morin & Barkley, on briefs), for
Manassas Park City

School Board and Virginia
Municipal Group Self-Insurance Association.

(R. Craig Jennings; Matthew J.
Parini; Brandt, Jennings, Roberts, Davis &
Snee, PLLC, on briefs), for

Rebecca Sue Phipps.


Rebecca Sue Phipps contends the Workers’
Compensation Commission erred in finding that she failed to prove
she made a reasonable effort to market her residual work
capacity. On cross-appeal, Manassas Park City School Board and
its insurer (hereinafter referred to as "employer")
contend the commission erred in finding that Phipps proved her
left-sided herniated disc was causally related to her compensable
injury by accident. Upon reviewing the record and the briefs of
the parties, we conclude that these appeals are without merit.
Accordingly, we summarily affirm the commission’s decision. See
Rule 5A:27.

Residual Work Capacity

To establish entitlement to benefits, a
partially disabled employee must prove that he or she has made a
reasonable effort to procure suitable work but has been unable to
do so. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va.
App. 459, 464, 359 S.E.2d 98, 101 (1987). "What constitutes
a reasonable marketing effort depends upon the facts and
circumstances of each case." The Grief Companies v. Sipe,
16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). "The
commission . . . determines which . . . factors are more or less
significant with regard to the particular case." National
Linen Serv. v. McGuinn
, 8 Va. App. 267, 272-73, 380 S.E.2d
31, 34 (1989).

"[W]e view the evidence in the light most
favorable to . . . the party prevailing before the
commission." Id. at 270, 380 S.E.2d at 33. So viewed,
the evidence proved Phipps’ doctor released her to perform light
duty work as of September 1, 1999. When Phipps had discussion
with her employer in September 1999, the employer had no light
duty work available. Phipps did not seek other work. She did not
search for work based upon her belief that she could not work
while applying for disability assistance. The record supports the
commission’s finding that Phipps failed to reasonably market her
residual work capacity as of September 1, 1999. Phipps made no
effort to market her residual work capacity. The commission did
not abuse its discretion in concluding that Phipps’ subjective
perception did not relieve her of the duty to market her residual
capacity. Accordingly, we cannot find as a matter of law that the
evidence proved Phipps made a reasonable effort to market her
residual work capacity.

Causation

"The actual determination of causation is
a factual finding that will not be disturbed on appeal if
credible evidence supports the finding." Ingersoll Rand
Co. v. Musick
, 7 Va. App. 684, 688, 376 S.E.2d 814, 817
(1989). In ruling that Phipps suffered a herniated disc and
corresponding disability as a result of her compensable February
10, 1999 injury by accident, the commission found as follows:

Dr. [Spencer G.] Feldmann and
his associates have related the claimant’s
symptoms and herniated disc to the work incident.
On February 12, 1999, [claimant] reported pain
shooting down her left leg. Dr. Feldmann’s
examination revealed lumbar spine tenderness,
lumbar muscle spasm, and left leg positive
straight leg raising. He immediately suspected
that the claimant suffered a herniated disc. On
May 5, 1999, Dr. [Gary A.] DeRosa noted continued
left hip pain that radiated down the hip. On
February 16, 2000, Dr. Feldmann opined that the
herniated disc resulted from the industrial
accident.

Dr. [Gabriel] Gluck has
causally connected the claimant’s condition to
the work-related incident. On February 18, 1999,
[claimant] told [Dr. Gluck] about intense left
leg and thigh discomfort.

Dr. Gluck diagnosed a lumbar
strain and advised that the claimant’s previous
back problems were not contributory. On May 25,
1999, Dr. Gluck opined that the condition was an
exacerbation of the February 1999 work-related
incident. On August 17, 1999, he reported that
the weakness of the left ankle dorsiflexors and
the L4-5 disc herniation were consistent with the
claimant’s sudden pain which she felt in her back
and leg while lifting the trash bag at work on
February 10, 1999. On January 13, 2000, Dr. Gluck
opined that it was possible that the disc
herniation was caused by the February 10, 1999,
accident. The opinions of Dr. Feldmann and Dr.
Gluck are more persuasive than the opinion of

Dr. [David C.] Urquia who only
reviewed the medical records.

As fact finder, the commission weighed the
medical evidence, accepted the opinions of Drs. Feldmann and
Gluck, and rejected the contrary opinion of Dr. Urquia.
"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). The
opinions of Dr. Feldmann and Dr. Gluck and Phipps’ testimony
constitute credible evidence to support the commission’s finding.
"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).

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

Affirmed.

 

FOOTNOTES:

[1] Retired Judge Charles H. Duff
took part in the consideration of this case by designation
pursuant to Code ? 17.1-400(D).

 


 

 

 

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