Elizabeth Mae Ayers v. White's Construction ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Senior Judge Cole
ELIZABETH MAE AYERS
MEMORANDUM OPINION*
v. Record No. 1236-00-3 PER CURIAM
NOVEMBER 28, 2000
WHITE'S CONSTRUCTION COMPANY, INC. AND
ERIE INSURANCE EXCHANGE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Tonja M. Roberts, on brief), for appellant.
(Mary Beth Nash; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.
Elizabeth Mae Ayers (claimant) contends that the Workers'
Compensation Commission erred in granting employer's application
and terminating her compensation benefits as of June 7, 1999 on
the ground that she was capable of returning to her pre-injury
work without restrictions. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). 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 granting employer's application, the commission found as
follows:
Dr. [Robert] Price's May 12 and June 4, 1999
reports clearly establish that the claimant
was able to return to unrestricted
work. . . .
On the other hand, even though he
recommends an MRI study of the lumbar spine,
Dr. [H. Michael] Jaffin's reports reveal
virtually no evidence of work incapacity,
except for the claimant's subjective
complaints. On August 31, 1999, x-rays of
the lumbar spine and pelvis performed for
Dr. Jaffin revealed no abnormalities. Also,
Dr. Jaffin reported on October 11, 1999 that
EMG and nerve conduction studies performed
one week earlier were interpreted as normal.
Even more significant are Dr. Jaffin's
objective findings during examinations on
August 31 and October 11, 1999. The
examinations reportedly revealed no
deformity of the lumbar spine, no
tenderness, a normal gait, normal toe and
heel walk, and normal range of motion of the
lumbar spine. Finally, Dr. Jaffin does not
in either of his reports indicate that the
claimant is in any way unable to work, even
though she complains of continued symptoms.
Thus, Dr. Price's report that the claimant
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can return to unrestricted work is
uncontradicted.
As fact finder, the commission was entitled to weigh the
medical evidence and to accept the opinion of Dr. Price,
claimant's treating physician. Dr. Price's medical reports and
opinions constitute credible evidence to support the
commission's finding that claimant was able to return to her
pre-injury work without restrictions. Accordingly, that finding
is binding and conclusive upon us on appeal. See id.For the reasons stated, we affirm the commission's
decision.
Affirmed.
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