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ROBERT COSTELLO CONSTRUCTION, et al. v. BRADLEY, et al.



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ROBERT COSTELLO
CONSTRUCTION, et al.

v.

BRADLEY, et al.


JUNE 13, 2000

Record No. 0323-00-4

ROBERT COSTELLO CONSTRUCTION AND

VIRGINIA FARM BUREAU FIRE AND

CASUALTY INSURANCE COMPANY

v.

MICKEY W. BRADLEY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Elder, Bumgardner and Humphreys

(Tenley A. Carroll-Seli; Pierce & Howard, P.C., on
briefs), for appellants.

(William S. Sands, Jr.; Duncan and Hopkins, P.C., on brief),
for appellee.


MEMORANDUM OPINION [1]

PER CURIAM

Robert Costello Construction and its insurer (hereinafter
referred to as "employer") contend that the Workers’
Compensation Commission erred in finding that Mickey W. Bradley
(claimant) proved that his headaches were causally related to his
compensable October 10, 1997 injury by accident. Pursuant to Rule
5A:21(b), claimant presents the additional question of whether
the commission erred in finding that he failed to prove that he
was entitled to continuing temporary total disability benefits
due to his headaches. 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. Causation

"The actual determination of causation is a factual
finding that will not be disturbed on appeal if there is credible
evidence to support the finding." Ingersoll-Rand Co. v.
Musick
, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989).
"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).

In holding that claimant’s headaches were causally related to
his compensable eye injury, the commission found as follows:

The headaches began following the injury,
particularly when triggered by light. Dr. [John] Carter wrote, "Mr. Bradley has headaches
which may well be related to the aphakia in the
eye." Dr. [Alan J.] Fink wrote that he could
not find any evidence on his ocular exam which
would cause the headaches, but he could not
categorically say the symptoms were not caused by
the eye injury. Dr. [Neil W.] Crowe stated that
"clearly as documented on the patient’s
orbital CT’s, he has had a significant injury to
the right eye which I think is the underlying
etiology for all of his head pains." Dr.
[James S.] Tiedeman stated that he did not know
if the headaches were related to the injury. Dr.
Crowe believes there is a relationship, and the
other doctors are not certain. Based on this
medical evidence as well as the circumstantial
evidence linking the headaches to the injury, we
are persuaded that there is a causal
relationship.

Dr. Crowe’s medical records and opinions provide credible
evidence to support the commission’s findings. As fact finder,
the commission was entitled to accept Dr. Crowe’s opinion.
"The fact that there is contrary evidence in the record is
of no consequence if there is credible evidence to support the
commission’s findings." Wagner Enters., Inc. v. Brooks,
12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

Disability

"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)). Unless we can say as a matter of law
that claimant’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 holding that there was no medical evidence that the
claimant’s headaches were disabling, the commission found as
follows:

Beginning April 25, 1998, the claimant was
unable to work due to pneumonia. We agree with
the employer that under American Furniture
Company v. Doane
, 230 Va. 39, 334 S.E.2d 548
(1985), the claimant is not entitled to
continuing temporary total disability benefits
during this non-work related disability. However,
on May 10, 1998, the claimant commenced marketing
his residual capacity. He is therefore entitled
to a resumption of temporary partial disability
benefits commencing May 10, 1998, and continuing.

On May 18, 1998, Dr. Fink noted that claimant was able to work
full employment, but that he might be more comfortable away from
bright sunlight. On May 19, 1998, Dr. Fink noted that claimant
came to his office about the statement contained in the May 18,
1998 letter regarding the sunlight. Dr. Fink wrote, "He
desires a statement that it is medically necessary for him to
work away from sunlight. I explained to him that on the basis of
my exam on 4/21/98, I could not make such a statement." On
June 1, 1998, Dr. Fink opined that claimant was fully capable of
returning to work, that claimant’s headache symptoms were not
disabling, and that claimant might want to wear sunglasses or an
eye patch to keep his headaches to a minimum. On July 8, 1998,
Dr. Carter noted that it "would be best if [claimant] could
find work indoors." At no time did either of these
physicians state that claimant’s headaches disabled him from
returning to his full, pre-injury employment. Accordingly, the
commission did not err in denying claimant’s request for a
resumption of temporary total disability benefits.

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

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code Sect.  17.1-413,
recodifying Code Sect.  17-116.010, this opinion is not
designated for publication.

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