Tultex Corporation v. Veola G. Brown

• Court: Court of Appeals of Virginia
• Decided: February 24, 1998
• Docket: 1610973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Bumgardner Argued at Salem, Virginia

TULTEX CORPORATION MEMORANDUM OPINION * BY v. Record No. 1610-97-3 JUDGE SAM W. COLEMAN III FEBRUARY 24, 1998 VEOLA G. BROWN

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Gregory T. Casker (Daniel, Vaughan, Medley & Smitherman, P.C., on brief), for appellant. Stephen G. Bass (Carter, Craig, Bass, Blair & Kushner, P.C., on brief), for appellee.

Tultex Corporation (employer) appeals from the Workers'

Compensation Commission's decision denying its application to

terminate Veola G. Brown's (claimant) temporary partial

disability benefits based upon a change in condition. Employer

contends the commission erred by holding that employer failed to

prove that claimant's continuing disability is not causally

related to her January 9, 1994 compensable injury by accident.

Employer also argues that claimant's benefits should be

terminated because she refused selective employment. We hold

that credible evidence supports the commission's decision and

that employer is procedurally barred from asserting its selective

employment claim in this appeal. Accordingly, we affirm the

commission's decision.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On appeal, we view the evidence in the light most favorable

to the party prevailing before the commission. See R.G. Moore

Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990). The commission's factual findings are conclusive and

binding on appeal if supported by credible evidence in the

record. See Lynchburg Foundry Co. v. Goad, 15 Va. App. 710, 712,

427 S.E.2d 215, 217 (1993); Classic Floors, Inc. v. Guy, 9 Va.

App. 90, 95, 383 S.E.2d 761, 764 (1989). Viewed accordingly, the evidence proved that claimant

suffered a compensable injury by accident on January 9, 1994,

when she fractured her right wrist at work. On January 16, 1995,

claimant's treating physician, Dr. Michael Wenkstern, performed

an "end result examination" on the wrist and determined that

claimant continued to experience "aching pain, tightness, and

soreness in the wrist." Dr. Wenkstern opined: It is unlikely that she will be able to lift heavy [objects] on a regular, continuous basis without some pain and problems with the wrist. For this reason, she should probably have a restriction of no lifting more than 15 or 20 pounds with the right hand alone indefinitely.

He further estimated "a 10% functional impairment of right arm

function as a residual of the fracture."

In March 1995, Dr. Wenkstern diagnosed "residual right wrist

pain and stiffness" following the fracture and reiterated that

Brown was on a lifting restriction due to residual weakness in

the wrist. In June 1995, Dr. Wenkstern approved a light duty job

- 2 - for claimant with employer. After claimant began this job, she

returned to Dr. Wenkstern on June 19, 1995. Dr. Wenkstern

reported that claimant complained of "aching pain and stiffness

in the fingers of both hands, more so on the left." He again

diagnosed residuals of the right wrist fracture as well as

osteoarthritic flare-up in the joints of both hands. He stated

that claimant's "hand osteoarthritis, particularly on the left,

seemed to be bothering her the most, and by her description, is

probably why she is having difficulty with her work." He

suggested that claimant take a "medical leave" and noted that

"she is out of work because of the hand arthritis and not

specifical [sic] the wrist fracture." In February 1996, claimant was treated by Dr. John Rice who

concluded that she suffered from the early stages of inflammatory

arthritis "but no erosive disease and no areas of abnormal

cartilage calcification." Employer filed a change-in-condition

application seeking termination of claimant's benefits on the

ground that her current disability was not causally related to

her work-related injury. The commission denied the application.

We find that credible evidence in the record supports the

commission's denial of employer's change-in-condition

application. "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." Rosello v. K-Mart Corp., 15 Va. App. 333, 335,

- 3 - 423 S.E.2d 214, 216 (1992) (citation omitted). Factual findings

made by the commission in reviewing an employer's

change-in-condition application are "conclusive and binding upon

the appellate court if based on credible evidence." Jules

Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 68, 334 S.E.2d 592,

595 (1985). Here, the commission found that employer failed to

prove that claimant's continuing disability was not related to

her work-related accident. Dr. Wenkstern's observations

attributing claimant's disability in part to residuals from her

right wrist fracture, along with the fact that claimant's lifting

restriction had not been removed, constitute credible evidence to

support the commission's determination. Although claimant's

continuing disability may have been predominantly caused by a

non-work-related osteoarthritic condition, the commission could

reasonably conclude from the evidence that residuals from

claimant's compensable right wrist fracture continued to be a

contributing factor in rendering claimant disabled. In

determining whether credible evidence exists, this Court does not

retry the case, reweigh the facts, or make its own determination

as to the credibility of the witnesses. See Wagner Enters., Inc.

v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

Because credible evidence supports the commission's decision, we

must uphold that decision on appeal. See Tomko v. Michael's

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1981).

Additionally, employer argues that the commission should

- 4 - have terminated the benefits because claimant refused selective

employment. Because employer's change-in-condition application

alleged only that claimant was no longer disabled as a result of

her work-related injury, we may not consider its selective

employment argument for the first time on appeal. See Green v.

Warwick Plumbing & Heating Corp., 5 Va. App. 409, 412-13, 364

S.E.2d 4, 6 (1988).

For the reasons stated, we affirm the commission's decision. Affirmed.

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