Home / Fulltext Opinions / Virginia Court of Appeals / WEIS MARKETS, INC., et al. v. GREGORY


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.




MAY 15, 2001

Record No. 0106-01-4

Present: Judges Benton, Humphreys and Retired
Judge Duff







(Jimese Pendergraft Sherrill; Pamela A.
Kultgen; Siciliano, Ellis, Dyer & Boccarosse, on brief), for

(Jerry O. Talton, Jr., on brief), for appellee.

Weis Markets, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers’
Compensation Commission erred in finding that Barry L. Gregory
proved that he was entitled to an award of temporary total
disability benefits after January 4, 1999 as a result of his
October 6, 1998 injury by accident. 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).

Gregory sustained an original back injury on
April 6, 1993 while working for employer. In April 1998, Dr.
Virgil Balint, Gregory’s treating physician, released him to full

On October 6, 1998, Gregory felt a pop in his
back while lifting a large box at work. The commission found that
he proved he sustained a new injury by accident on October 6,
1998. Employer does not challenge that finding on appeal.

After the October 6, 1998 back injury, Dr.
Gregory Ford, an orthopedist, treated Gregory and diagnosed him
as suffering from a recurrent lumbar strain. Dr. Ford excused him
from work in October, November, and December 1998. After that
date, Dr. Benjamin Rezba, Dr. Ford’s partner, continued Gregory’s
medical care.

On January 4, 1999, at employer’s request, Dr.
Balint examined Gregory. Dr. Balint concluded that Gregory’s
objective physical examination had not changed since he had
treated Gregory in 1998. Dr. Balint opined that there was a
discrepancy between Gregory’s excessive complaints and the
objective examination. Dr. Balint opined that Gregory could
perform his regular work duties.

On January 25, 1999, Dr. Rezba released Gregory
to light duty. On March 8, 1999, Dr. Rezba noted that Gregory
continued to work full duty, with a continuing diagnosis of
lumbosacral strain. On April 28, 1999, Dr. Rezba re-imposed light
duty restrictions, noting back pain as well as symptom
magnification. On July 21, 1999, Dr. Rezba excused Gregory from
work and suggested a repeat MRI. Dr. Rezba continued to keep
Gregory off from work in September 1999 and ordered a discogram.

On December 14, 1999, Dr. Thomas Schuler began
treating Gregory at Dr. Rezba’s request. On that date, Dr.
Schuler wrote to Dr. Rezba noting that "[b]ased upon your
diskography, there is significant disk disruption at the L4-5
level." Dr. Schuler wrote that he needed to review Gregory’s
MRI and other studies to determine whether "evidence of
junctional breakdown" existed. If so, Dr. Schuler stated
that he would have to re-perform the diskography to evaluate
these levels before considering surgery.

On March 1, 2000, Dr. Schuler interpreted a
diskography he performed. Based upon the results of that test,
Dr. Schuler opined that the L3-4 level was consistent with
Gregory’s pain and that he was a candidate for interbody fusion.

On March 20, 2000, Dr. Rezba noted that Dr.
Schuler had been "able to do the 3-4 disc that I couldn’t do
and saw that there was a large spur that was probably pushing the
nerve to where we couldn’t get around it." Dr. Rezba
recommended that Gregory be referred to Dr. Schuler to go ahead
with surgery.

In response to questions from Gregory’s
counsel, Dr. Rezba excused Gregory from all work since May 1999
as a result of the October 6, 1998 accident. Dr. Schuler also
opined that Gregory was totally disabled from all work since
December 1999.

On March 27, 2000, Dr. Balint wrote to
employer’s counsel that "[t]hough this diskogram was
performed by an extremely qualified back surgeon, whom I know
quite well, and the diskogram was positive, it is still my
opinion that the patient is an extremely poor candidate
for surgery
." Dr. Balint also stated that when he last
saw Gregory on October 27, 1999, his back pain was related to
degenerative arthritis, not the October 1998 injury.

Based upon the results of the discograms, Drs.
Rezba and Schuler unequivocally opined that Gregory was totally
disabled as a result of the October 6, 1998 injury by accident.
Their opinions provide credible evidence to support the
commission’s finding that Gregory was entitled to an award of
temporary total disability benefits from October 8, 1998 through
January 23, 1999 and from July 21, 1999 and continuing.

The commission, as fact finder, was entitled to
weigh the medical evidence and to accept the opinions of Drs.
Rezba and Schuler, the treating physicians after Gregory’s
October 6, 1998 injury, and to reject the contrary view of Dr.
Balint. "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). 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). The commission
rejected Dr. Balint’s opinion because he was not the treating
physician after the October 1998 accident. When Dr. Balint
rendered his March 27, 2000 opinion, he had not seen Gregory for
a lengthy period of time. Moreover, Dr. Balint did not comment
upon the issue of disability at that time.

For these reasons, we affirm the commission’s



[1] Retired Judge Charles H. Duff
considered this case by designation pursuant to Code
? 17.1-400(D).

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