International Design Services v. Pagnato

• Court: Court of Appeals of Virginia
• Decided: October 10, 2000
• Docket: 1318004
• Status: Unpublished

Opinion

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Jr.'s out-of-date medical reports and opinions.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

- 2 - 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

- 3 - 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.

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

Affirmed.

- 5 -