Chevy Chase Bank F S B v. Donald M Johnson ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Bray
CHEVY CHASE BANK F S B AND
VIGILANT INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2538-02-4 PER CURIAM
FEBRUARY 25, 2003
DONALD M. JOHNSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert C. Baker, Jr.; Dobbs & Baker, on
brief), for appellants.
(Alan C. Siciliano; DeCaro, Doran, Siciliano,
Gallagher & DeBlasis, LLP, on brief), for
appellee.
Chevy Chase Bank F S B and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that employer failed to prove that
Donald M. Johnson (claimant) was able to return to his
pre-injury work as of July 13, 2001. Upon reviewing the record
and the parties' briefs, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
"General principles of workman's compensation law provide
that 'in 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)). Unless we can say as a matter of law that
employer's evidence sustained its burden of proving that
claimant was able to perform all of the duties of his pre-injury
employment, 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).
In denying employer's application, the commission found as
follows:
Dr. [Sheldon] Margulies opined in July 2001
that the claimant was capable of part-time
work but that he could not perform all of
the duties of his full time pre-injury
employment. Dr. Margulies has treated the
claimant since August 2000, and we defer to
that doctor's opinions regarding the
claimant's work status. Although
Dr. [Melissa] Neiman opined that the
claimant could perform all of his pre-injury
work duties on a full time basis, Dr. Neiman
concurred in the opinion that the claimant
suffered from post-traumatic headache
syndrome.
We have not overlooked the videotapes.
These videotapes show the claimant
performing on stage on three different
occasions over a one and a half year period.
However, it does not appear that the
videotapes were shown to Dr. Margulies. The
Deputy Commissioner, who observed the videos
and observed the claimant at the hearing,
held that the videotapes were less
sufficient than the treating physician's
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opinion regarding the claimant's work
status. The record is not sufficient to
overcome this determination.
Dr. Margulies's medical records and opinions amply support
the commission's findings. As fact finder, the commission was
entitled to weigh the medical evidence, to accept
Dr. Margulies's opinion, to reject Dr. Neiman's contrary
opinion, and to give little probative weight to the videotapes.
It is well settled that credibility determinations are within
the fact finder's exclusive purview. Goodyear Tire & Rubber Co.
v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
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).
In light of Dr. Margulies's opinion and the commission's
credibility determination, we cannot find as a matter of law
that employer's evidence sustained its burden of proof.
Accordingly, we affirm the commission's decision.
Affirmed.
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