Shore Health Services, Inc v. Roberta Jennestreet ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
SHORE HEALTH SERVICES, INC.,
SHORE MEMORIAL HOSPITAL AND
RECIPROCAL OF AMERICA
MEMORANDUM OPINION*
v. Record No. 2503-02-1 PER CURIAM
FEBRUARY 4, 2003
ROBERTA JENNESTREET
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(George C. Dancigers; Antony K. Jones;
Heilig, McKenry & Fraim, on briefs), for
appellants.
(Alan P. Owens, on brief), for appellee.
Shore Health Services, Inc., Shore Memorial Hospital and
their insurer (hereinafter referred to as "employer") contend
the Workers' Compensation Commission erred in finding that
Roberta Jennestreet proved she remained totally disabled after
November 1, 2000 as a result of her injury by accident. 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.
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).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 Jennestreet sustained her burden of proof,
the commission found as follows:
[E]mployer relies on Dr. [Peter] Klara's
November 1, 2000, report that places the
claimant at maximum medical improvement and
releases her to light-duty work.
Dr. [Bruce] Tetalman, on the other hand,
noted on November 1, 2000, that the claimant
continued to be totally disabled. The
deputy commissioner recognized this conflict
and ruled that the claimant showed total
disability. Dr. Klara performed surgery on
the claimant's neck and treated her
neurological problems. His associate,
Dr. Tetalman, on the other hand, provided
pain management treatment and also treated
the claimant's depression caused by the
accident. We believe that the deputy
commissioner correctly weighed this evidence
and found that the claimant proved she was
totally disabled.
"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). The totality of Dr. Tetalman's medical
records and opinions constitute credible evidence to support the
commission's finding "that the claimant continued to be totally
disabled." "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.
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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 and to accept Dr. Tetalman's opinions regarding
disability. The commission found that the apparent conflict
between Dr. Tetalman's opinion and Dr. Klara's opinion was not
real and provided an explanation. The record supports the
commission's finding that Dr. Tetalman "provided pain management
treatment and . . . treated claimant's depression," neither of
which were addressed by Dr. Klara. "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).
For these reasons, we affirm the commission's decision.
Affirmed.
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