Shoppers Food v. John Mafis Godfrey, Jr.

• Court: Court of Appeals of Virginia
• Decided: December 17, 1996
• Docket: 1721964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

SHOPPERS FOOD WAREHOUSE AND ZURICH INSURANCE COMPANY MEMORANDUM OPINION * PER CURIAM v. Record No. 1721-96-4 DECEMBER 17, 1996

JOHN MAFIS GODFREY, JR.

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Colleen Marea Quinn; Cantor, Arkema & Edmonds, on briefs), for appellants.

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

Shoppers Food Warehouse and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that (1) John Mafis

Godfrey, Jr., sustained a compensable change in condition as of

September 1, 1994; (2) Godfrey made a reasonable effort to market

his residual work capacity after September 1, 1994; (3) Godfrey

obtained a valid referral from Dr. David E. Couk for treatment

rendered by Dr. Terry L. Whipple; and (4) the Bankhart lesion

diagnosed by Dr. Whipple was causally related to Godfrey's

compensable October 25, 1992 injury by accident. 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. Standard of Review

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 if

supported by credible evidence. James v. Capitol Steel Constr.

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

II. Change in Condition The evidence proved that on October 25, 1992, Godfrey

sustained a compensable injury by accident to his right shoulder.

The commission awarded Godfrey temporary total disability

benefits for the periods October 28, 1992 through December 13,

1992 and December 29, 1992 through July 13, 1994. On May 24,

1994, Dr. Mayo F. Friedlis, a physiatrist, opined that Godfrey's

rotator cuff tear had healed and released Godfrey to return to

his pre-injury work. On November 30, 1994, based upon Dr.

Friedlis' report, Deputy Commissioner Lee granted employer's

change in condition application and terminated Godfrey's benefits

as of July 13, 1994.

On August 11, 1994, Dr. Donald L. McNay, an orthopedic

surgeon, examined and noted that Godfrey suffered pain when he

placed his arm under weighted stress. Dr. McNay restricted

Godfrey's lifting to fifty to sixty pounds and his overhead

lifting to five pounds.

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

2 condition of the employee . . . .'" Crystal Oil Co. v. Dotson,

12 Va. App. 1014, 1018-19, 408 S.E.2d 252, 253 (1991) (citation

omitted). Dr. McNay's August 11, 1994 report constitutes

credible evidence to support the commission's finding that

Godfrey met his burden of proving a change in condition as of

September 1, 1994.

Employer argues that the commission should not have

considered Dr. McNay's August 11, 1994 report because it was

previously before Deputy Commissioner Lee when she rendered her

November 30, 1994 opinion, from which Godfrey did not appeal. In

arguing that the doctrine of res judicata barred the commission from considering Dr. McNay's report, employer ignores a finding

that Deputy Commissioner Lee stated in her November 30, 1994

opinion. She specifically found that "[s]ince the only issue

before the Commission is the Employer's Application, i.e., the

claimant does not have a change in condition claim before us, we

will not consider whether the August 11, 1994 medical record from

Dr. McNay constituted a valid change in condition and rendered

the claimant partially disabled." That finding dispositively

establishes that employer's res judicata argument is without merit.

III. Marketing

The commission found that Godfrey made a reasonable effort

to market his remaining work capacity after Dr. McNay imposed

work restrictions. Godfrey submitted a lengthy list of potential

3 employers which he contacted between September 1994 and October

1995. Between September 1994 and April 1995, Godfrey submitted

approximately 130 resumes to prospective employers.

On April 1, 1995, Godfrey obtained employment as a used car

salesman. On July 28, 1995, that employer terminated Godfrey's

employment because of anticipated absences for surgery

recommended by Dr. Whipple. Following his termination, Godfrey

interviewed with real estate companies. However, these companies

would not pay the fees necessary to reactivate Godfrey's real

estate license nor could Godfrey afford to pay such fees. Godfrey's testimony and his list of job contacts constitute

credible evidence to support the commission's finding that

Godfrey made a reasonable effort to market his residual work

capacity. See National Linen Serv. v. McGuinn, 8 Va. App. 267,

272, 380 S.E.2d 31, 34 (1989).

IV. Dr. Whipple's Treatment/Bankhart Lesion

Because Dr. Couk could not determine the cause of Godfrey's

continuing pain, he repeatedly tried to obtain permission from

employer's insurance carrier to refer Godfrey to Dr. Whipple for

evaluation. The insurance carrier did not respond to Dr. Couk's

numerous requests. On July 26, 1995, pursuant to Dr. Couk's

referral, Godfrey was examined by Dr. Whipple, without the

approval of employer or its insurance carrier.

"Whether the employer is responsible for medical

expenses . . . depends upon: (1) whether the medical service was

4 causally related to the industrial injury; (2) whether such other

medical attention was necessary; and (3) whether the treating

physician made a referral . . . [of] the patient." Volvo White

Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906

(1985). The commission found that Dr. Couk made a valid referral

of Godfrey to Dr. Whipple. The commission did not err in so

finding. "[M]edical management of the claimant is to be directed

by the treating physician, not by an employer's representative.

'[N]either the employer nor its insurance carrier may limit the

treating physician in the medical specialist, or treating

facilities to which the claimant may be referred for treatment.'" Jensen Press v. Ale, 1 Va. App. 153, 158, 336 S.E.2d 522, 525

(1985) (citation omitted).

In his July 27, 1995 letter, Dr. Whipple opined that Godfrey

had a Bankhart lesion, that "clinically, the shoulder sublaxes

anteriorly, and [that] such a defect is consistent with his

mechanism of injury." Based upon this opinion, the commission

could reasonably infer that Godfrey's Bankhart lesion and the

surgery recommended by Dr. Whipple were causally related to

Godfrey's compensable injury by accident.

The commission accepted the opinions of Drs. Whipple and

Couk and rejected the contrary opinions of Drs. Debs, Friedlis,

and Pangallo with regard to the cause of the Bankhart lesion and

the necessity of surgery. The medical records and opinions of

Drs. Whipple and Couk constitute credible evidence to support the

5 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).

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

Affirmed.