Kenneth E. Cobb v. Shaw Paint & Wall ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KENNETH E. COBB
MEMORANDUM OPINION *
v. Record No. 1065-97-1 PER CURIAM
DECEMBER, 9, 1997
SHAW PAINT & WALL PAPER COMPANY, INC.
AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Kenneth E. Cobb, pro se, on brief).
(Bradford C. Jacob; Taylor & Walker, on
brief), for appellees.
Kenneth E. Cobb contends that the Workers' Compensation
Commission erred in finding that he was not entitled to (1) a
reinstatement of compensation benefits, and (2) a change in
treating physicians. Cobb also requests an award for lost
earnings, partial permanent disability benefits, and pain and
suffering. 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. See
Rule 5A:27.
I.
"General principles of workman's compensation law provide
that '[i]n 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 § 17-116.010 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)). 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). Unless we can say as a matter of law that Cobb's
evidence sustained his burden of proof, 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 ruling that Cobb's evidence did not prove that the
employer forged Cobb's signature on the Agreed Statement of Fact
and that Cobb was not entitled to a reinstatement of compensation
benefits, the commission found as follows:
After considering [Cobb's] testimony, we
are unpersuaded, as was the Deputy
Commissioner, that [Cobb] did not sign the
Agreed Statement of Fact. We therefore find
no evidence of imposition or fraud.
We do find evidence of mutual mistake,
because the wrong reason for termination of
the award was checked on the Agreed Statement
of Fact. Nonetheless, in light of the
unequivocal release to full unrestricted duty
on December 8, 1995, which was never
retracted and was in fact reiterated on
August 1, 1996, by Dr. Payne, we find [Cobb]
is not entitled to benefits after December 8,
1995. We therefore conclude that the Deputy
Commissioner properly declined to set aside
the termination of [Cobb's] award.
Based upon the testimony of Cobb and Matthew Thompson, the
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insurance adjuster, the commission could find that the parties
signed the Agreed Statement of Fact. Because credible evidence
supports that finding, it is conclusive and binding on appeal.
Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d
782, 788 (1988). Furthermore, the commission could reasonably
infer from the evidence that when the statement was signed the
incorrect box had been checked, indicating that Cobb had returned
to pre-injury work rather than that he had been released to
return to pre-injury work. "Where reasonable inferences may be
drawn from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988). Furthermore, the undisputed medical records of
Dr. Loel Z. Payne, the treating orthopedist, proved that as of
December 8, 1995, Dr. Payne had released Cobb to return to his
pre-injury work without restrictions.
Because the evidence supports the commission's findings,
they are binding and conclusive upon us. See id. In view of
those findings, we cannot say as a matter of law that the
commission erred in refusing to reinstate Cobb's compensation
benefits.
II.
Whether a treating physician has released or abandoned his
patient generally is determined by the express intent of the
physician. In some cases, the total circumstances must be
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analyzed in order to determine whether the discharge, release, or
abandonment of the patient was intended. This is a factual
determination that the commission must make. See Jensen Press v.
Ale, 1 Va. App. 153, 157, 336 S.E.2d 522, 524 (1985).
In ruling that Cobb was not entitled to change his treating
physicians, the commission found as follows:
Dr. Payne, [Cobb's] treating physician, is an
orthopedic specialist who has appropriately
evaluated and treated [Cobb's] injury.
[Cobb's] condition progressed to the point
where Dr. Payne released him to full,
unrestricted duty. Although Dr. Payne has
stated that he has no orthopedic treatment
for [Cobb], he has advised [Cobb] to return
as needed, and has suggested that [Cobb]
might obtain relief from his muscle spasms
through chiropractic treatment. [Cobb] must
continue to seek treatment from Dr. Payne and
his referrals.
The commission's findings are amply supported by the medical
records and will not be disturbed on appeal. Thus, we cannot
find as a matter of law that the commission erred in denying
Cobb's request for a change in treating physicians.
III.
Cobb did not make a claim before the commission for $33,280
in lost earnings, permanent partial disability benefits, or for
$50,000 in pain and suffering. Accordingly, we will not address
those theories of recovery for the first time on appeal. Rule
5A:18; see Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189,
192, 355 S.E.2d 347, 349 (1987).
For these reasons, we affirm the commission's decision.
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Affirmed.
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