Federal Express Corporation v. Connie T. Klyver

• Court: Court of Appeals of Virginia
• Decided: December 21, 1999
• Docket: 1947992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

FEDERAL EXPRESS CORPORATION MEMORANDUM OPINION* v. Record No. 1947-99-2 PER CURIAM DECEMBER 21, 1999 CONNIE T. KLYVER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Roger L. Williams; John T. Cornett, Jr.; Williams, Lynch & Whitt, on brief), for appellant.

(B. Mayes Marks, Jr.; Marks and Williams, P.C., on brief), for appellee.

Federal Express Corporation (employer) contends that the

Workers' Compensation Commission erred in (1) finding that

employer failed to prove that Connie T. Klyver was able to

return to her pre-injury work as of August 6, 1998; (2) finding

that Dr. Howard Stern's August 6, 1998 examination of Klyver

constituted a second independent medical examination which

required authorization under Code § 65.2-607; (3) finding that

Klyver's compensable back injury rather than her unrelated knee

injury continued to disable her from returning to her pre-injury

employment; and (4) failing to address the issue of whether

Klyver unjustifiably refused medical treatment as a result of

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. her inability to continue work hardening due to her knee

condition. 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.

"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

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)). The commission's findings are binding and conclusive

upon us, unless we can say as a matter of law that employer's

evidence sustained its burden of proof. See Tomko v. Michael's

Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

I.

On July 28, 1998, Dr. Sheryll A. Bryan, Klyver's treating

physician, who diagnosed Klyver as suffering from chronic

sacroiliac joint dysfunction, opined that Klyver could not

return to her pre-injury work as a courier and that she would

need to consider other job options. On August 20, 1998, Dr.

Bryan confirmed that Klyver's low back problem was due to her

compensable March 20, 1997 injury by accident and that Klyver

- 2 - was not capable of returning to her pre-injury job as a courier

due to her low back problems.

Dr. Bryan referred Klyver to Sheltering Arms Hospital for

work hardening. Dr. Katherine Dec, who followed Klyver during

the work hardening program, noted that as of July 23, 1998,

Klyver continued to suffer from right SI joint dysfunction, for

which she should follow-up with Dr. Bryan.

Dr. W.E. Thompson performed an independent medical

examination of Klyver at the request of employer on April 17,

1998. Dr. Thompson concluded that Klyver would benefit from

completing the work hardening program and that she should be

able to return to unrestricted work upon completion of such a

program.

On August 6, 1998, Dr. Stern examined Klyver at employer's

request. Although Klyver would not allow Dr. Stern to examine

her back because she understood that the examination was to be

limited to her knee problem, Dr. Stern concluded that Klyver's

back had reached maximum medical improvement and that she could

return to her pre-injury work as a courier. Dr. Stern believed

he possessed enough information based upon Klyver's medical

records to render an opinion to a reasonable degree of medical

certainty regarding her ability to return to work with respect

to her back condition.

In denying employer's application to terminate Klyver's

award, the commission accepted the opinions of Drs. Bryan and

- 3 - Dec and rejected the contrary opinion of Dr. Stern. In so

holding, the commission found as follows:

Dr. Stern examined [Klyver] on one occasion. He was not allowed to examine [her] lower back. Because this was a second independent evaluation, [Klyver] was within her rights to decline such evaluation. In his deposition testimony, [Dr. Stern] indicated that his decision was based on [Klyver's] diagnostic testing and medical reports from other physicians. He did note that there was some objective evidence; however, whether [Klyver] had pain on any given day would not change his opinion.

We find far more persuasive the reports of Dr. O'Bryan [sic], [Klyver's] treating physician, including the August 20, 1998, response to the carrier and the notes of Dr. Dec contained in the Sheltering Arms reports. These physicians had the opportunity to examine [Klyver] completely and to review the same diagnostic studies and medical reports as Dr. Stern. They have been actively involved in [Klyver's] treatment. We find their opinion that [Klyver] is currently unable to return to her regular employment as a courier with [employer] far more persuasive than Dr. Stern's, who relied on their reports to reach his conclusion.

The commission articulated legitimate reasons for giving

little probative weight to Dr. Stern's opinion. In light of

these reasons and the opinions of Drs. Bryan and Dec, the

commission was entitled to conclude that the opinions of Drs.

Stern and Thompson did not constitute sufficient evidence to

prove that Klyver was capable of performing her pre-injury

employment. "Medical evidence is not necessarily conclusive,

but is subject to the commission's consideration and weighing."

- 4 - Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991). Moreover, the opinions and medical

records of Drs. Bryan and Dec support the commission's

conclusion that "[w]hile [Klyver] may also have experienced a

knee injury, the weight of the evidence is that her back

continues to disable her from returning to her regular

employment."

Because the medical evidence was subject to the

commission's factual determination, we cannot find as a matter

of law that the evidence proved that as of August 6, 1998 Klyver

was capable of returning to her pre-injury employment.

II.

Employer requests that we reverse the commission's finding

that Dr. Stern's examination constituted a second independent

medical examination which required prior approval from the

commission pursuant to Code § 65.2-607.

Even though the commission found Dr. Stern's examination

was not properly authorized, it considered Dr. Stern's medical

reports in their entirety, along with the remaining medical

records. By doing so, the commission rendered this issue moot.

Accordingly, we will not address it. This Court does not render

advisory opinions on moot questions. See Commonwealth v.

Harley, 256 Va. 216, 219, 504 S.E.2d 852, 854 (1998).

- 5 - III.

Employer did not request at the hearing before the deputy

commissioner or on review before the full commission that

Klyver's benefits be terminated or suspended on the ground that

she had refused medical treatment because she was removed from

work hardening due to her knee injury. 1 Accordingly, we will not

consider this theory of recovery for the first time on appeal.

See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355

S.E.2d 347, 349 (1987); Rule 5A:18.

For these reasons, we affirm the commission's decision.

Klyver's request that the costs of this proceeding be assessed

against employer is granted.

Affirmed.

1 We note that on the August 18, 1998 Employer's Application for Hearing, employer indicated that Klyver was taken out of work hardening due to an unrelated knee problem as of July 24, 1998. However, employer did not indicate that Klyver had refused medical treatment and did not raise this issue at the hearing before the deputy commissioner or upon review to the full commission.

- 6 -