Fannon Petroleum, etc. v. John D. Price

• Court: Court of Appeals of Virginia
• Decided: January 23, 1996
• Docket: 1778954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

FANNON PETROLEUM SERVICE, INC. AND FEDERATED MUTUAL INSURANCE COMPANY

v. Record No. 1778-95-4 MEMORANDUM OPINION * PER CURIAM JOHN D. PRICE JANUARY 23, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Robert M. McAdam; Wooten & Hart, on brief), for appellants.

(Kathleen G. Walsh; Ashcraft & Gerel, on brief), for appellee.

Fannon Petroleum Service, Inc. contends that the Workers'

Compensation Commission erred in finding that John D. Price

("claimant") (1) gave credible testimony; (2) did not

unjustifiably refuse selective employment; (3) sustained a change

in condition as of July 13, 1994; (4) was entitled to an award of

temporary partial disability benefits commencing December 15,

1994; and (5) reasonably marketed his residual capacity between

July 13, 1994 and December 14, 1994. 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.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I. and 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).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

On May 1, 1991, claimant sustained a compensable injury by

accident to his right hand, right shoulder, and neck, while

working for employer as a delivery driver. Claimant came under

the care of Dr. Kim Marsh, a neurosurgeon, who performed surgery

on claimant's neck on September 3, 1991. Dr. Marsh released

claimant to light duty in January 1992. In April 1992, claimant began part-time selective employment

at the communications center for Spotsylvania County (the "911

Center"), taking emergency calls and dispatching assistance. In

July 1993, he began working full-time in the 911 Center.

Claimant earned an average weekly wage of $318.60 in this job.

In June 1994, a new 911 Center opened, including a new

communications control room. In the new center, claimant had to

sit in a chair and monitor a computer screen, which was higher

than his shoulders. Claimant testified that this arrangement

caused him to have to squint and raise his neck to be able to see

the monitor through his lower bifocals. When training began in

the new 911 Center in May 1994, claimant started experiencing

2 increasing neck pain and headaches. In June 1994, claimant

returned to Dr. Marsh and reported that his neck pain had

increased due to the arrangement of his computer equipment at

work. On July 13, 1994, claimant resigned his position due to

these problems.

Claimant admitted that on July 11, 1994, he had an

altercation with a co-worker, causing him to submit a resignation

letter on July 12, 1994. Claimant testified that he "blew up" at

the co-worker due to excessive fatigue caused by working two

consecutive twelve-hour shifts. The next day, claimant asked for

the letter back and wrote another resignation letter citing his

neck problems as his reason for leaving. Angela Anderson, claimant's supervisor, knew claimant was

having neck problems after the May 1994 training began. She had

also been advised by Dr. Marsh in a June 28, 1994 letter that the

placement of claimant's computer equipment needed to be changed

to aid his comfort. As of July 13, 1994, Anderson had not made

any changes to the arrangement of claimant's computer equipment.

On December 15, 1994, claimant acquired a new position as a

security guard, earning $216.40 per week.

The commission ruled that claimant was justified in

terminating his selective employment on July 13, 1994. In doing

so, the commission weighed the totality of the evidence and

resolved any inconsistencies in favor of claimant. The

commission was entitled to accept claimant's testimony concerning

3 the reason he left the 911 job. Moreover, claimant's testimony

is corroborated by Dr. Marsh's medical records and deposition

testimony. After June 28, 1994, Dr. Marsh consistently opined

that claimant's computer equipment needed to be placed in an

ergonomically correct arrangement to alleviate his neck pain and

to enable him to work.

Claimant's testimony, coupled with Dr. Marsh's medical

records and opinions, constitute credible evidence to support the

commission's decision. "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).

The full commission relied upon the deputy commissioner's

credibility determination in reaching its decision. 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). Based

upon this record, the commission was entitled to find that

claimant's testimony was credible. "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." Brooks, 12

Va. App. at 894, 407 S.E.2d at 35.

III.

"[A] change in condition 'means a change in physical

4 condition of the employee as well as any change in the conditions

under which compensation was awarded or terminated which would

affect the right to, amount of, or duration of compensation.'

Code § 65.2-1.8." Crystal Oil Co. v. Dotson, 12 Va. App. 1014,

1018-19, 408 S.E.2d 252, 253 (1991). Because credible evidence

supports the commission's finding that claimant no longer

possessed the capacity to perform his selective employment, the

commission did not err in finding that claimant sustained a

compensable change in condition. Accordingly, the commission did

not err in awarding temporary total disability benefits to

claimant, beginning July 13, 1994 through December 14, 1994, and temporary partial disability benefits thereafter based

upon his earnings as a security guard.

Because our rulings on employer's first three questions

presented dispose of this appeal, we need not address employer's

last two questions presented.

For the stated reasons, we affirm the commission's decision. Affirmed.