Suffolk Public Schools v. Goldie L. Scoggins

• Court: Court of Appeals of Virginia
• Decided: August 8, 1995
• Docket: 2206941
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bray Argued at Norfolk, Virginia

SUFFOLK PUBLIC SCHOOLS

v. Record No. 2206-94-1 MEMORANDUM OPINION * BY JUDGE JERE M. H. WILLIS, JR. GOLDIE L. SCOGGINS AUGUST 8, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Colleen Treacy Dickerson (George J. Dancigers; Heilig, McKenry, Fraim & Lollar, on brief), for appellant. Arnold H. Abrons (Abrons, Fasanaro & Sceviour, on brief), for appellee.

Suffolk Public Schools (Suffolk) appeals the decision of the

Workers' Compensation Commission finding Suffolk failed to prove

a change in condition of Goldie Scoggins. Suffolk contends (1)

that no credible evidence supports the commission's finding that

Scoggins is unable to return to her pre-injury employment, and

(2) that the award of temporary total disability benefits from

December 4, 1993 and continuing should have been terminated. We

find no error and affirm.

Suffolk employed Scoggins as an elementary school teacher.

On December 2, 1987, she sustained a compensable injury when she

slipped on a waxed floor in the school. She receives disability

benefits under the Virginia Retirement System.

On December 13, 1993, Suffolk filed a change in condition * Pursuant to Code § 17-116.010 this opinion is not designated for publication. application alleging that Scoggins could return to her pre-injury

employment as of December 3, 1993 and seeking suspension of the

February 5, 1993 award of temporary total disability benefits.

Suffolk based its application on the medical opinions of Dr.

Devereaux, an orthopaedic surgeon, and Dr. Schinco, a

neurosurgeon.

The deputy commissioner denied Suffolk's claim, finding that

Suffolk had not proved by a preponderance of the evidence that

Scoggins was capable of returning to her pre-injury employment.

Even though the deputy commissioner found the medical opinions of

Drs. Devereaux and Schinco credible, he found that the opinion of

Dr. Deaton, Scoggins' treating physician, was entitled to greater

weight. Harding v. Mother Goose, Inc., 57 O.I.C. 159 (1977).

The full commission affirmed the opinion of the deputy.

"In an application for review of an award on the ground of a

change in condition, the burden is on the party alleging such

change to prove his allegations by a preponderance of the

evidence." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 438-39, 339 S.E.2d 570, 572 (1986) (citing J.A. Jones

Constr. Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 202, 204

(1956)). Where conflicting medical opinions exist, the general

rule is that greater weight will be accorded the opinion of the

treating physician when he is positive in his diagnosis. Id. at

439, 339 S.E.2d at 572 (citations omitted).

Citing Russell v. Wright Mining Co., 49 O.I.C. 284 (1967),

- 2 - Suffolk argues that the medical reports of Dr. Devereaux and Dr.

Schinco should be accorded greater weight than Dr. Deaton's

opinion because they are specialists in the field of orthopaedics

and neurology, whereas Dr. Deaton is a general practitioner. In

Russell, the commission gave greater weight to the medical

opinions of two specialists stating, "[t]he medical opinions of

general practitioners offered by claimants fall far short of

overcoming the contrary view put forth by several well recognized

and eminently qualified specialists." Id. at 290. Dr. Devereaux

and Dr. Schinco examined Scoggins and reviewed her medical

records. They both found that she had fully recovered and was

capable of returning to her pre-injury employment without

limitation.

Scoggins' treating physician, Dr. Deaton, who has been

treating her since the day of the accident, disagreed. In his

February 21, 1994 report, he stated, "she continues in chronic

lumbar sacral muscle spasm and she is not expected to recover

from same." In October, 1989, he referred her to Dr. Floyd, a

chiropractor, for lumbosacral intervertebral disc syndrome. Dr.

Floyd has been treating her continuously since that time. In his

August, 1993 report, Dr. Floyd stated that she continues to

complain of back, left hip and leg pain as well as numbness in

her left foot. Both doctors found her unable to return to her

pre-injury work.

"Given this conflict of medical expert opinions, it is for

- 3 - the Commission to determine the probative weight to be accorded

such evidence." Pilot, 1 Va. App. at 439, 339 S.E.2d at 572.

The commission resolved this conflict in favor of Scoggins based

on the credible evidence provided by Dr. Deaton and Dr. Floyd.

The commission took note of the opposing opinions but put greater

weight on Dr. Deaton's and Dr. Floyd's opinions because of the

length of time and regularity with which they have been treating

Scoggins. On review, we view the evidence in the light most favorable

to the party prevailing below. Crisp v. Brown's Tysons Corner

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).

"[T]he commission's findings of fact must be upheld when

supported by credible evidence." Billy v. Lopez, 17 Va. App. 1,

3-4, 434 S.E.2d 908, 910 (1993) (citing James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 (1989)).

The commission's finding that Suffolk failed to prove a change

in Scoggins' condition is supported by credible evidence and is

binding on appeal. Id.

The judgment of the commission is affirmed.

Affirmed.

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