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DUTZMAN v. WOODDELL, et al.



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DUTZMAN

v.

WOODDELL, et al.


NOVEMBER 16, 1999

Record No. 1735-99-4

JOLEANE DUTZMAN

v.

J. DOUGLAS WOODDELL, D.D.S. AND

HARTFORD UNDERWRITERS INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Present: Judges Bray, Annunziata and Frank

MEMORANDUM OPINION* PER CURIAM

(Robert W. Dowler, on briefs), for appellant.

(William R. Korth; Law Offices of Francis H.
Foley, on brief), for appellees.


Joleane Dutzman (claimant) contends that the
Workers’ Compensation Commission (commission) erred in failing to
(1) exclude the September 1, 1998 medical report of Dr.
Philip Edelman; (2) award temporary total disability benefits to
claimant after March 31, 1996 and continuing;
[1] and (3) award medical benefits to
claimant after April 25, 1996 and continuing for her lifetime.
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.

Employer’s counsel possessed Dr. Edelman’s
September 1, 1998 medical report for a substantial period of time
before he filed it with the commission and provided a copy of it
to claimant’s counsel eight days before the hearing. However, it
was undisputed that the late filing constituted an inadvertent
oversight by employer’s counsel. Pursuant to Rule 4.2 of the Rules
of the Virginia Workers’ Compensation Commission
and Code
Sect. 65.2-902, the commission fined employer’s counsel for
his oversight.

The deputy commissioner admitted Dr. Edelman’s
report into evidence and provided claimant with ample opportunity
to cross-examine Dr. Edelman before the record closed. Claimant
elected not to cross-examine Dr. Edelman in any manner
whatsoever. Having chosen not to take advantage of the
opportunity to cross-examine Dr. Edelman regarding the
September 1, 1998 medical report, claimant cannot claim that
she was prejudiced by the late filing. Under these circumstances,
the commission did not abuse its discretion in admitting Dr.
Edelman’s medical report into evidence.

II. and III.

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
claimant’s evidence sustained her 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).

The commission denied claimant disability
benefits after March 31, 1996 and denied her medical benefits for
treatment incurred after April 25, 1996. In doing so, the
commission relied upon the opinions and medical records of Drs.
William J. Thompson and Richard J. Redding and rejected the
opinions of Drs. William J. Meggs and Thomas J. Callender. The
medical records and opinions of Drs. Thompson and Redding support
the commission’s findings that claimant was not disabled after
March 31, 1996 due to the effects of her exposure to Lysol
Brand Concentrate at work in February 1996; that the effects of
that exposure ended by April 25, 1996; and that her symptoms
thereafter were due to pre-existing conditions or other causes.

The commission articulated sound reasons for
giving little probative weight to the contrary opinions of Drs.
Meggs and Callender. "Medical evidence is not necessarily
conclusive and 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). "Moreover,
"[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).

Because the medical evidence was subject to the
commission’s factual determination, we cannot find as a matter of
law that claimant sustained her burden of proof.

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

Affirmed.

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

 

FOOTNOTES:

[1] Questions Presented 2, 3, and 4
relate to this issue and have been consolidated for purposes of
this opinion.

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