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Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

Argued at Salem, Virginia

Record No. 1463-03-3






NOVEMBER 25, 2003


Anne Musgrove (Ramesh Murthy; Lisa Frisina Clement; PennStuart,

on brief), for appellant.

Paul L. Phipps (D. Allison Mullins; Lee & Phipps, P.C., on
brief), for


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
recommended conservative

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

original injury]."

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
neurologist. Claimant

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
claimant’s family

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
to his

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,

9 (1932).

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.




[1]Pursuant to
Code ? 17.1-413 this opinion is not designated for publication.