Regina Bossong Butler v. City of Virginia Beach ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia
REGINA BOSSONG BUTLER
MEMORANDUM OPINION* BY
v. Record No. 0282-01-1 JUDGE JEAN HARRISON CLEMENTS
NOVEMBER 27, 2001
CITY OF VIRGINIA BEACH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Rutter, Walsh,
Mills & Rutter, L.L.P., on brief), for
appellant.
Teresa N. McCrimmon, Assistant City Attorney
(Leslie L. Lilley, City Attorney, on brief),
for appellee.
Regina Bossong Butler (claimant) appeals the decision of
the Workers' Compensation Commission (commission) denying her
claim for permanent total disability benefits. She contends the
commission erred in ruling that she failed to prove she was
unable to use her legs in any substantial degree in gainful
employment. Finding no error, we affirm the commission's
decision.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
In reviewing the commission's decision, we view the evidence
in the light most favorable to the party prevailing before the
commission. See Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662,
672, 508 S.E.2d 335, 340 (1998). The commission's factual
findings are conclusive and binding on appeal if supported by
credible evidence in the record. Southern Iron Works, Inc. v.
Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). "In
determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
the witnesses." Wagner Enters. v. Brooks, 12 Va. App. 890, 894,
407 S.E.2d 32, 35 (1991). Therefore, unless we determine, as a
matter of law, that claimant proved by a preponderance of the
evidence that she was totally and permanently disabled as a
result of her work-related injury, the commission's contrary
decision is binding and conclusive. See Owens v. Virginia Dept.
of Transp., 30 Va. App. 85, 87, 515 S.E.2d 348, 349 (1999).
To receive permanent total disability benefits based on the
loss of use of her legs, claimant had to prove that she was unable
to use her legs "in any substantial degree in any gainful
employment." Virginia Oak Flooring Co. v. Chrisley, 195 Va.
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850, 857, 80 S.E.2d 537, 541 (1954). In denying claimant's
application for an award of total and permanent disability
benefits, the commission found as follows:
We believe that the claimant did not
show that she was unable to use her legs "in
any substantial degree in any gainful
employment." The evidence clearly showed
that the claimant suffered residual
disability from the February 2, 1988,
accident. As for the extent of her
disability, Dr. Mein opined that the
claimant no longer suffered from [reflex
sympathetic dystrophy (RSD)], and believed
that she was not totally disabled, but
should undergo a functional capacity
evaluation to determine her work capacity.
The claimant's treating physician,
Dr. Shall, agreed that the claimant's RSD
was no longer "active," but was unable to
opine "whether she has some ability to be
gainfully employed," and recommended a
functional capacity evaluation.
Dr. Abbott's 1991 impairment rating
notwithstanding, the 1994 functional
capacity evaluation indicated that the
claimant possessed the ability to use her
legs in a light-duty capacity.
Addressing claimant's argument that her psychological
problems contributed to her inability to work, the commission
further found as follows:
While clearly relevant in determining
the extent of her disability, the evidence
of the claimant's psychiatric problems did
not indicate that the claimant was unable to
be gainfully employed in any substantial
degree as a result of the loss of use of her
legs. Dr. Daniel Fisher, M.D., the
claimant's treating psychotherapist, has
consistently described the claimant's
emotional problems as "intermittent feelings
of depression." On March 6, 2000,
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Dr. Fisher noted that the claimant
"describes intermittent feelings of
depression but denies any death wishes or
suicidal ideation. . . . The evidence did
not show an opinion by Dr. Fisher that the
claimant's emotional problems resulted in
her being unable to perform gainful
employment.
As fact finder, the commission was entitled to weigh the
medical evidence and to accept the opinions of Dr. Mein and
Dr. Fisher. Those opinions, along with the 1994 functional
capacity evaluation referenced by the commission, constitute
credible evidence to support the commission's findings.
Furthermore, we find no persuasive medical evidence in the record
of claimant's permanent incapacity to work. Thus, we cannot
determine, as a matter of law, that claimant carried her burden of
proving by a preponderance of the evidence that she was unable to
use her legs in any substantial degree in gainful employment.
Accordingly, we affirm the commission's decision.
Affirmed.
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