Michael Ray Manes v. TCB Construction ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MICHAEL RAY MANES
MEMORANDUM OPINION *
v. Record No. 0862-96-2 PER CURIAM
SEPTEMBER 24, 1996
TCB CONSTRUCTION, INC.
AND
ERIE INSURANCE EXCHANGE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael R. Manes, pro se, on brief).
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, on brief), for
appellees.
Michael Ray Manes contends that the Workers' Compensation
Commission erred in finding that (1) he was not a credible
witness; (2) his right carpal tunnel syndrome and current
disability are not causally related to his July 6, 1993 injury by
accident; and (3) he failed to market his residual capacity.
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. Rule 5A:27.
I.
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). In reviewing the commission's decision, we do not
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
consider any medical reports which were not properly before it.
Based upon Manes' failure to reveal his 1983 work accident and
his pre-July 6, 1993 bilateral carpal tunnel symptoms, as well as
other discrepancies between his assertions of total disability
and the medical records, the commission was entitled to conclude
that Manes' testimony was not credible.
II.
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). In
holding that Manes failed to prove that his right carpal tunnel
syndrome was caused by his July 6, 1993 injury by accident, the
commission found as follows:
Dr. [Robert] Rutkowski opined that [Manes']
carpal tunnel syndrome was not causally
related to his compensable injury by accident
on July 6, 1993. In an October 13, 1994
report, Dr. [George N.] Stergis indicated
that "given the absence of pre-existing
complaints or alternative explanations,"
[Manes'] carpal tunnel syndrome is causally
related to his employment. It is obvious
from this report that Dr. Stergis was unaware
of [Manes'] complaints of right wrist pain as
early as 1986. After viewing a portion of
the hearing transcript, Dr. Stergis concluded
that [Manes] has a pre-existing history of
carpal tunnel syndrome.
After a thorough review of the medical
record, it appears that none of the
physicians involved in this matter indicate
within a reasonable degree of medical
certainty that [Manes'] right carpal tunnel
syndrome is causally related to the July 6,
1993 incident.
The commission's findings are fully supported by the medical
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records. "Questions 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). Moreover, in
its role as fact finder, the commission was entitled to determine
what weight, if any, was to be given to the various medical
opinions in the record. "It lies within the commission's
authority to determine the facts and the weight of the evidence
. . . ." Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App.
55, 60, 396 S.E.2d 392, 395 (1990). Credible evidence in the
record supports the commission's finding that Manes did not bear
his burden of proving that his right carpal tunnel syndrome and
continuing disability were related to his July 6, 1993 injury by
1
accident.
III.
"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to . . . the prevailing
party before the commission . . . ." National Linen Serv. v.
McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). A
claimant still has the burden of proving his entitlement to
benefits, and to do that he has the burden of proving that he
1
We recognize that the Supreme Court ruled in Stenrich Group
v. Jemmott, 251 Va. 186, 199, 467 S.E.2d 795, 802 (1996), that
carpal tunnel syndrome is not compensable as an occupational
disease if it is caused by repetitive motion. However, employer
did not raise the issue of whether Manes' condition constituted a
disease before the commission. Accordingly, we do not address
this issue on appeal.
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made a reasonable effort to procure suitable work but was unable
to market his remaining work capacity. Great Atl. & Pac. Tea Co.
v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987).
Relying upon Dr. Stergis' October 13, 1994 report, the
commission found that Manes was only partially incapacitated. In
light of medical records supporting the commission's decision
that Manes was at most partially disabled and in light of his
failure to provide evidence of his marketing efforts, we hold
that credible evidence supports the commission's finding.
For the foregoing reasons, we affirm the commission's
decision.
Affirmed.
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