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MARCH 13, 2001

Record No. 2695-00-4

Present: Judges Elder, Bray and Senior Judge






(Julie H. Heiden; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for appellant.

(Thomas C. Palmer, Jr.; Brault, Palmer, Grove,
Zimmerman, White & Steinhilber, LLP, on brief), for appellee.

Noor Ul-Qamar (claimant) contends that the
Workers’ Compensation Commission erred in finding that she was
able to return to light duty work as of December 17, 1998, and in
terminating her compensation benefits as of February 1, 1999, the
date she refused selective employment. 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. 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. James v. Capitol
Steel Constr. Co.
, 8 Va. App. 512, 515, 382 S.E.2d 487, 488

In terminating claimant’s benefits as of
February 1, 1999, the commission found as follows:

While the claimant has a longer treatment
history with Dr. [Mohammad] Akbar, he was not her treating
physician for her work-related accident. Dr. [G.A.] Nejad, an
orthopedist, is her treating physician. He, in turn, referred her
to Dr. [John A.] Bruno and to Dr. [Mayo F.] Friedlis. . . . We find the claimant was released
to light duty work on December 10, 1998, which was followed up
with a note on December 17, 1998, by Dr. Nejad. The claimant
testified that she was aware of being released to return to work.
Ms. [Rebecca] Irvin[, loss control specialist,] testified that on
the following day she provided the claimant with information
about returning to light duty. While we are not persuaded by the
opinion of Dr. Nejad based on a telephone call from the
claimant’s daughter that she was unable to work, we note that Ms.
Irvin did not follow up at the time with making a job offer. By
her own testimony, Ms. Irvin waited until the claimant returned
to Dr. Nejad. We find Dr. Nejad, on January 7, and specifically
on January 28, 1999, again found that the claimant [was] able to
return to light duty work. We are more persuaded by his report,
which is buttressed by the report of Dr. Bruno, to whom he
referred the claimant for additional care than Dr. Akbar. We note
that Dr. Akbar was treating the claimant for similar symptoms as
a result of a motor vehicle accident that occurred prior to the
work incident. Dr. Akbar stated the claimant could not perform
the position in her "job description." This job
apparently was the claimant’s regular work. He has never directly
addressed whether the claimant could perform light duty work. Dr.
Friedlis, the claimant’s current treating physician, has not
expressed an opinion on her disability or cause. In addition, at
the time of the January 28, 1999, release, Dr. Friedlis was not
seeing the claimant. The complaints voiced by the claimant are
subjective and not supported by any of the diagnostic testing.

We find the opinions of the treating physician
are more persuasive than Dr. Akbar, who has not provided any
actual basis, other than the claimant’s subjective complaints,
for finding that she is disabled. Therefore, in view of the
claimant’s failure to make even an attempt to return to light
duty but giving her the benefit of the doubt, we find benefits
should be terminated effective February 1, 1999, the date the
claimant failed to report for selective employment.

"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). The commission
weighed the medical evidence and, as fact finder, was entitled to
accept the opinions of the treating orthopedists, Dr. Nejad, and
Dr. Bruno, and to reject the contrary opinions of Dr. Akbar.
"Questions raised by conflicting medical opinions must be
decided by the commission." Penley v. Island Creek Coal
, 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). Dr.
Nejad’s January 7, 1999 and January 28, 1999 notes and opinions
releasing claimant to light duty work and Dr. Bruno’s February
23, 1999 report constitute credible evidence to support the
commission’s findings. As the commission noted, Dr. Akbar relied
upon a job description of claimant’s regular work and never
addressed the light-duty position.

For these reasons, we affirm the commission’s



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