International Design Services v. Pagnato ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
INTERNATIONAL DESIGN SERVICES AND
STATE FARM FIRE & CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 1318-00-4 PER CURIAM
OCTOBER 10, 2000
PAUL A. PAGNATO
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs),
for appellants.
(James F. Green; Ashcraft & Gerel, on brief),
for appellee.
International Design Services and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in (1) finding that Paul A.
Pagnato (claimant) met his burden of proving entitlement to
temporary total disability benefits commencing September 1, 1998
and continuing; and (2) relieving claimant of his burden of
proof by presuming continuing disability and awarding continuing
temporary total disability benefits based upon Dr. Harold Allen,
Jr.'s out-of-date medical reports and opinions. Upon reviewing
the record and the briefs of the parties, we conclude that this
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. See Rule 5A:27.
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).
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 awarding claimant continuing temporary total disability
benefits after September 1, 1998, the commission found as
follows:
We find based on the reports of Dr.
[Angela W.] Santini and the deposition of
Dr. Allen that the claimant has remained
totally disabled since his attempt to return
to light duty work [in August 1998]. Before
the [January 13, 1998] accident the claimant
only received medical treatment after 1992
for his back on at most four occasions. Dr.
Allen was very specific in testifying that
the August 14, 1997 treatment was for
sacroiliitis and gluteus strain and not a
back problem. Therefore the last indication
of any back problem is the March 2, 1995
visit after playing golf. This is almost 3
years before the claimant return [sic] on
January 27, 1998. Dr. Allen has been the
claimant's treating doctor since 1992. He
is also in the same practice as Dr. Santini,
who treated the claimant immediately after
the accident. We find that Dr. Allen,
because of his knowledge of the claimant's
pre-injury treatment, as well as his
post-accident examinations, is in the best
position to determine both the disability
and its causal relationship. We are
cognizant that the claimant was examined by
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Dr. [Robert O.] Gordon and have carefully
reviewed his report. However, we do not
find that Dr. Gordon's opinion based on one
evaluation is sufficient to overcome that of
the physician who has treated the claimant
since 1992. . . . We also note Dr. Allen's
testimony that, unless the claimant's
condition improved, it was unnecessary for
him to see the claimant in order to
determine his continuing disability. In
addition, we note the claimant was
apparently continuing to receive injections
from Dr. Brown. . . . If the employer had
evidence that the claimant's disability had
abated pending the opinion, it could have
filed a protective Application for Hearing.
"Medical evidence is not necessarily conclusive, but 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). In its role as fact finder, the
commission was entitled to accept the opinions of Dr. Allen,
claimant's treating physician, and to reject the contrary
opinion of Dr. Gordon, who only examined claimant on one
occasion, at employer's request, more than one year after
claimant's accident. "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).
Dr. Allen's response to claimant's counsel's questionnaire on
January 26, 1999 and Dr. Allen's March 31, 1999 deposition
testimony, coupled with claimant's testimony regarding his
continuing symptoms, medical treatment and disability, provide
ample credible evidence to support the commission's finding that
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claimant remained totally disabled after September 1, 1998.
"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).
Moreover, we find no merit in employer's argument that the
commission erred in retroactively awarding continuing disability
benefits based upon Dr. Allen's "out-of-date" medical reports
and opinions. Employer contends that the commission erred in
affirming the award for continuing disability benefits seventeen
months after Dr. Allen's December 3, 1998 examination of
claimant.
The commission's decision related to claimant's condition
as of the date of the hearing, February 2, 1999. If employer
believed that claimant's condition had changed since that date
and that his disability had abated after the hearing date, "its
proper remedy [was] to seek a new hearing pursuant to Code
§ 65.1-99 [now Code § 65.2-708]." Trammel Crow Co. v. Redmond,
12 Va. App. 610, 615, 405 S.E.2d 632, 635 (1991). Under the
circumstances of this case, the commission did not relieve
claimant of his burden of proving continuing disability nor did
it err in awarding him temporary total disability benefits
commencing September 1, 1998 and continuing.
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For these reasons, we affirm the commission's decision.
Affirmed.
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