Newport News Shipbuilding, etc v. Joseph W Burnett

• Court: Court of Appeals of Virginia
• Decided: August 27, 2002
• Docket: 0954021
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Agee and Senior Judge Coleman

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY MEMORANDUM OPINION* v. Record No. 0954-02-1 PER CURIAM AUGUST 27, 2002 JOSEPH W. BURNETT, JR.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Christopher R. Hedrick; Mason, Cowardin & Mason, P.C., on brief), for appellant.

(Gregory E. Camden; Montagna, Breit, Klein & Camden, LLP, on brief), for appellee.

Newport News Shipbuilding and Dry Dock Company (employer)

contends the Workers' Compensation Commission erred in finding

that Joseph W. Burnett, Jr. (claimant) proved (1) his left leg

condition was a compensable consequence of his 1992 right knee

injury; and (2) he adequately marketed his residual work

capacity after July 10, 2000. 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.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. Compensable Consequence

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). "The

actual determination of causation is a factual finding that will

not be disturbed on appeal if there is credible evidence to

support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.

684, 688, 376 S.E.2d 814, 817 (1989).

In ruling that claimant proved his left knee condition was

a compensable consequence of his May 9, 1992 compensable work

injury to his right knee, the commission found as follows:

The compensable May 9, 1992, right knee accident required 2 arthroscopy procedures and a total knee replacement. We have no evidence that before the 1992 accident, the claimant had any problem or a diagnosis of arthritis in his left knee. It was only after two arthroscopy procedures to the right knee that the claimant first reported on November 4, 1998 a problem with the left knee. While it appears that from the degree of arthritis in the left knee it pre-existed the accident, Dr. [Glenn] Nichols, the treating doctor, causally related the deterioration of the knee to the need to shift weight to the left knee because of the right knee surgeries. Dr. Nichols has stated that without the right knee injury he could not say that the claimant would have required treatment for the left knee. We find the opinion of Dr. Nichols to be more persuasive than that of Dr. [Patrick W.] O'Connell who examined the claimant one time at the request of the employer and Dr. [David] Tornberg who only reviewed medical records.

- 2 - The medical records and opinions of the treating physician,

Dr. Nichols, coupled with claimant's testimony, constitute

credible evidence to support the commission's findings. As fact

finder, the commission was entitled to weigh the medical

evidence, to accept Dr. Nichols' opinions, and to reject the

contrary opinions of Drs. O'Connell and Tornberg. "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). Furthermore, "[i]n 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."

Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991).

II. Marketing

"What constitutes a reasonable marketing effort depends on

the facts and circumstances of each case." The Greif Cos. v.

Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) (citation

omitted). When the commission's factual determinations are

supported by credible evidence, they will not be disturbed on

appeal. Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217,

220-21, 527 S.E.2d 451, 453 (2000). The commission determines

the weight to give the various criteria it considers. National

Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34

(1989) (citing relevant factors). - 3 - In holding that claimant adequately marketed his residual

work capacity, the commission found as follows:

[C]laimant has attended the Job Club on two occasions. He has worked with at least three job counselors who have been unsuccessful in locating a position within his physical capacity. He has registered with the Virginia Employment Commission. While the claimant may have applied for some positions that a vocational rehabilitation specialist would not deem appropriate, this does not negate that his consistent actions of applying anywhere that a job was available were such as to demonstrate a genuine effort to locate possible employment. While some of the jobs that the claimant contacted were clearly not within his work restrictions, we find that a number of them were. We do not find that it was unreasonable for the claimant to apply for desk clerk positions particularly since a vocational counselor previously identified this as a possible job. The claimant also noted seeing desk clerks sitting. Based on the totality of the evidence including the inability of vocational counselor's to locate employment, we find that in this case the claimant sufficiently marketed his remaining capacity.

As fact finder, the commission weighed claimant's evidence

and accepted his testimony and evidence regarding his marketing

efforts. 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). In light of the nature and extent of claimant's

disability; his training, age, experience and education; the

nature and extent of his job search; the intent of his job

search; availability of jobs in the area; and his cooperation - 4 - with three vocational counselors who failed to locate suitable

employment for him, the commission could reasonably conclude

that claimant adequately marketed his residual work capacity.

The fact that some of the jobs claimant applied for may have

arguably entailed duties outside his work restrictions did not

automatically preclude a finding by the commission that he

adequately marketed his residual work capacity.

Because the commission's decision was based upon credible

evidence, it will not be disturbed on appeal.

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

Affirmed.

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