Dnyalectric Company v. Timothy Dean Downing ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
DYNALECTRIC COMPANY AND
CONTINENTAL CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 2478-02-4 PER CURIAM
FEBRUARY 11, 2003
TIMOTHY DEAN DOWNING
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Joseph C. Veith III; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellants.
(William H. Schladt; Ward & Klein, Chartered,
on brief), for appellee.
Dynalectric Company and its insurer (hereinafter referred
to as "employer") contend the Workers' Compensation Commission
erred in finding that Timothy Dean Downing (claimant) proved
that (1) his disability beginning April 10, 2001 was causally
related to his compensable June 26, 1999 neck injury; and (2) he
was totally disabled beginning April 10, 2001 and, therefore,
was not required to prove he adequately marketed his residual
work capacity. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that claimant met his burden of proving causally
related total disability as of April 10, 2001, the commission
found as follows:
[I]n 1999, the treating doctors determined
that a cervical fusion was necessary. The
claimant elected to continue working as long
as medication could control the pain. The
uncontradicted evidence is that on April 10,
2001, the claimant returned to Dr. [Robert
D.] Gerwin wanting to proceed with surgery
because the pain had worsened to the point
that medication did not control it
sufficiently to allow him to work.
Dr. Gerwin, the treating physician, has
indicated that the claimant was totally
disabled as of this date. Dr. [Edward F.]
Aulisi, the treating neurosurgeon, has also
indicated that the claimant needs surgery
and is disabled. The medical records
reflect a worsening of the claimant's
symptoms since April 10, 2001. An MRI has
shown central disc herniations at C5-6 and
C6-7. Dr. Aulisi and Dr. Gerwin have
related the disc herniations to the
compensable injury. Dr. [Michael W.]
Dennis, who saw the claimant at the request
of the employer, initially focused his
examination on the claimant's back. He also
appears to be mistaken that the claimant was
working when seen on November 8, 2001.
[Thus,] . . . his subsequent addendum
concerning the neck without any additional
evaluation is not persuasive or sufficient
to overcome the opinions of the treating
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physicians. In reaching our decision, we
are cognizant that the claimant considered
accepting work as a project manager after
April 10, 2001. However, he also testified
knowledgeably and credibly as to reasons for
not pursuing this opportunity. In addition,
Dr. Gerwin has specifically stated that the
claimant could not work as a project
manager. In view of his worsening
condition, both treating physicians'
statements that he was totally disabled, and
pending surgery, we are persuaded that the
claimant was totally disabled as of April
10, 2001, and continuing.
Based upon the medical records and opinions of Drs. Gerwin
and Aulisi, along with claimant's testimony, the commission
could reasonably infer that claimant was totally disabled as of
April 10, 2001, as a result of his compensable neck condition.
In his July 15, 2001 letter, Dr. Gerwin unequivocally opined
that claimant had been totally disabled as of April 10, 2001,
that he suffered from herniated discs at C5-6 and C6-7, and that
he should undergo two-level cervical fusion. On July 2, 2001,
Dr. Aulisi opined that claimant is currently temporarily
disabled. Previously, in an August 6, 1999 report, Dr. Gerwin
opined that claimant sustained "an acute injury to the cervical
spine that occurred in June, 1999 while at work, leaving him
with neck pain, restricted movement of the neck, and radicular
symptoms in the arms." Dr. Aulisi previously opined in a
September 7, 1999 report that claimant's disc herniations were
causally related to his compensable June 26, 1999 injury by
accident. Claimant testified that as of April 10, 2001, his
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neck pain had worsened, going down into his shoulders and hands.
He also testified in depth as to why he was unable to work. In
addition, claimant testified that Dr. Gerwin told him to have
the surgery and "that work was out of the question, to continue
lifting and doing my type of work."
The medical records and opinions of Drs. Gerwin and Aulisi,
coupled with claimant's testimony, provide credible evidence to
support the commission's findings. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's finding." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). As fact finder, the commission was entitled to weigh
the medical evidence, to accept the opinions of Drs. Gerwin and
Aulisi, and to reject any contrary opinion of Dr. Dennis. 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).
For these reasons, we affirm the commission's decision.
Affirmed.
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