Joleane Dutzman v. J. Douglas Wooddell, DDS ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
JOLEANE DUTZMAN
MEMORANDUM OPINION*
v. Record No. 1735-99-4 PER CURIAM
NOVEMBER 16, 1999
J. DOUGLAS WOODDELL, D.D.S.
AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert W. Dowler, on briefs), for appellant.
(William R. Korth; Law Offices of Francis H.
Foley, on brief), for appellees.
Joleane Dutzman (claimant) contends that the Workers'
Compensation Commission (commission) erred in failing to
(1) exclude the September 1, 1998 medical report of Dr. Philip
Edelman; (2) award temporary total disability benefits to
claimant after March 31, 1996 and continuing; 1 and (3) award
medical benefits to claimant after April 25, 1996 and continuing
for her lifetime. 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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Questions Presented 2, 3, and 4 relate to this issue and
have been consolidated for purposes of this opinion.
I.
Employer's counsel possessed Dr. Edelman's September 1,
1998 medical report for a substantial period of time before he
filed it with the commission and provided a copy of it to
claimant's counsel eight days before the hearing. However, it
was undisputed that the late filing constituted an inadvertent
oversight by employer's counsel. Pursuant to Rule 4.2 of the
Rules of the Virginia Workers' Compensation Commission and Code
§ 65.2-902, the commission fined employer's counsel for his
oversight.
The deputy commissioner admitted Dr. Edelman's report into
evidence and provided claimant with ample opportunity to
cross-examine Dr. Edelman before the record closed. Claimant
elected not to cross-examine Dr. Edelman in any manner
whatsoever. Having chosen not to take advantage of the
opportunity to cross-examine Dr. Edelman regarding the
September 1, 1998 medical report, claimant cannot claim that she
was prejudiced by the late filing. Under these circumstances,
the commission did not abuse its discretion in admitting Dr.
Edelman's medical report into evidence.
II. and III.
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).
Unless we can say as a matter of law that claimant's evidence
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sustained her burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The commission denied claimant disability benefits after
March 31, 1996 and denied her medical benefits for treatment
incurred after April 25, 1996. In doing so, the commission
relied upon the opinions and medical records of Drs. William J.
Thompson and Richard J. Redding and rejected the opinions of
Drs. William J. Meggs and Thomas J. Callender. The medical
records and opinions of Drs. Thompson and Redding support the
commission's findings that claimant was not disabled after
March 31, 1996 due to the effects of her exposure to Lysol Brand
Concentrate at work in February 1996; that the effects of that
exposure ended by April 25, 1996; and that her symptoms
thereafter were due to pre-existing conditions or other causes.
The commission articulated sound reasons for giving little
probative weight to the contrary opinions of Drs. Meggs and
Callender. "Medical evidence is not necessarily conclusive and
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).
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Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that claimant sustained her burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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