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SERVICES, et al.



OCTOBER 10, 2000

Record No. 1318-00-4

Present: Chief Judge Fitzpatrick, Judge
Bumgardner and

Senior Judge Hodges







(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs), for appellants.

(James F. Green; Ashcraft & Gerel, on
brief), for appellee.

International Design Services and its insurer
(hereinafter referred to as "employer") contend that
the Workers’ Compensation Commission erred in (1) finding that
Paul A. Pagnato (claimant) met his burden of proving entitlement
to temporary total disability benefits commencing September 1,
1998 and continuing; and (2) relieving claimant of his burden of
proof by presuming continuing disability and awarding continuing
temporary total disability benefits based upon Dr. Harold Allen,
Jr.’s out-of-date medical reports and opinions. 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.

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). Factual findings made by the commission
will be upheld on appeal if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515,
382 S.E.2d 487, 488 (1989).

In awarding claimant continuing temporary total
disability benefits after September 1, 1998, the commission found
as follows:

We find based on the reports of Dr.
[Angela W.] Santini and the deposition of Dr. Allen that the
claimant has remained totally disabled since his attempt to
return to light duty work [in August 1998]. Before the [January
13, 1998] accident the claimant only received medical treatment
after 1992 for his back on at most four occasions. Dr. Allen was
very specific in testifying that the August 14, 1997 treatment
was for sacroiliitis and gluteus strain and not a back problem.
Therefore the last indication of any back problem is the March 2,
1995 visit after playing golf. This is almost 3 years before the
claimant return [sic] on January 27, 1998. Dr. Allen has been the
claimant’s treating doctor since 1992. He is also in the same
practice as Dr. Santini, who treated the claimant immediately
after the accident. We find that Dr. Allen, because of his
knowledge of the claimant’s pre-injury treatment, as well as his
post-accident examinations, is in the best position to determine
both the disability and its causal relationship. We are cognizant
that the claimant was examined by Dr. [Robert O.] Gordon and have
carefully reviewed his report. However, we do not find that Dr.
Gordon’s opinion based on one evaluation is sufficient to
overcome that of the physician who has treated the claimant since
1992. . . . We also note Dr. Allen’s testimony that, unless the
claimant’s condition improved, it was unnecessary for him to see
the claimant in order to determine his continuing disability. In
addition, we note the claimant was apparently continuing to
receive injections from Dr. Brown. . . . If the employer had
evidence that the claimant’s disability had abated pending the
opinion, it could have filed a protective Application for

"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). In its role as
fact finder, the commission was entitled to accept the opinions
of Dr. Allen, claimant’s treating physician, and to reject the
contrary opinion of Dr. Gordon, who only examined claimant on one
occasion, at employer’s request, more than one year after
claimant’s accident. "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). Dr. Allen’s response to claimant’s counsel’s
questionnaire on January 26, 1999 and Dr. Allen’s March 31, 1999
deposition testimony, coupled with claimant’s testimony regarding
his continuing symptoms, medical treatment and disability,
provide ample credible evidence to support the commission’s
finding that claimant remained totally disabled after September
1, 1998. "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).

Moreover, we find no merit in employer’s
argument that the commission erred in retroactively awarding
continuing disability benefits based upon Dr. Allen’s
"out-of-date" medical reports and opinions. Employer
contends that the commission erred in affirming the award for
continuing disability benefits seventeen months after Dr. Allen’s
December 3, 1998 examination of claimant.

The commission’s decision related to claimant’s
condition as of the date of the hearing, February 2, 1999. If
employer believed that claimant’s condition had changed since
that date and that his disability had abated after the hearing
date, "its proper remedy [was] to seek a new hearing
pursuant to Code ? 65.1-99 [now Code
? 65.2-708]." Trammel Crow Co. v. Redmond, 12
Va. App. 610, 615, 405 S.E.2d 632, 635 (1991). Under the
circumstances of this case, the commission did not relieve
claimant of his burden of proving continuing disability nor did
it err in awarding him temporary total disability benefits
commencing September 1, 1998 and continuing.

For these reasons, we affirm the commission’s



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