United Airlines, Inc. v. Richard G. Rice, Jr.
This text of United Airlines, Inc. v. Richard G. Rice, Jr. (United Airlines, Inc. v. Richard G. Rice, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements Argued at Alexandria, Virginia
UNITED AIRLINES, INC. MEMORANDUM OPINION* BY v. Record No. 1902-00-2 JUDGE JERE M. H. WILLIS, JR. MARCH 20, 2001 RICHARD G. RICE, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael N. Salveson (Hunton & Williams, on brief), for appellant.
(Benjamin M. Smith, Jr.; Kilgore & Smith, on brief), for appellee. Appellee submitting on brief.
United Airlines, Inc., (United) appeals from a decision of
the Workers' Compensation Commission, reversing the opinion of
the deputy commissioner, and denying its application alleging a
change in condition. United contends that the commission erred
in finding that Richard G. Rice, Jr., could not return to his
pre-injury employment as of April 19, 1999. We reverse the
commission's decision.
I. BACKGROUND
On November 8, 1995, Rice sustained compensable injuries to
his left shoulder and right foot while employed as a ramp
serviceman for United. Awards were entered in his favor, first
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. for temporary total disability and then for temporary partial
disability.
On June 21, 1999, United filed a change-in-condition
application alleging that Rice could return to his pre-injury
employment as of April 19, 1999, and seeking termination of his
award. United based its application on the medical reports of
Dr. Edward G. Alexander, Jr., dated April 19, 1999 and May 25,
1999.
The deputy commissioner terminated Rice's award, holding
that United had proved by a preponderance of the evidence that
Rice was capable of returning to his pre-injury employment as of
April 19, 1999.
The full commission reversed the opinion of the deputy
commissioner, holding that the preponderance of the evidence
proved that Rice cannot perform his pre-injury employment.
II. ANALYSIS
On appellate review, we view the evidence in the light most
favorable to the party prevailing below. See R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). The commission's findings of fact are binding and
conclusive on appeal when supported by credible evidence. See
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986) (citations omitted). "General principles of workman's
compensation law provide that '[i]n an application for review of
- 2 - any award on the ground of change in condition, the burden is on
the party alleging such change to prove his allegations by a
preponderance of the evidence.'" Great Atl. & Pac. Tea Co. v.
Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987).
In holding that United failed to prove that Rice could
return to his pre-injury employment, the commission stated:
[Rice's] treating physician, Dr. Alexander, assigned permanent restrictions of no lifting over 30 pounds and no overhead work effective February 1, 1996. In May 1999, Dr. Alexander "estimated" [Rice's] present functional capacity and concluded that he would be able to perform his preinjury employment, effectively lifting all restrictions. However, he clearly attributed the ongoing complaints of pain to the compensable accident. On June 28, 1999, after [Rice] expressed concern that he would not be able to perform his preinjury employment consistently, Dr. Alexander amended his opinion to reflect that there was a "good probability that [Rice] could not consistently perform [his preinjury] job functions without missing time from work. . . ." This opinion is buttressed by the actual FCE findings, which reflect that he is unable to lift up to 70 pounds, as his preinjury employment requires.
Although Dr. Freedman disagreed with Dr. Alexander's June 28, 1999, caveat, we place greater weight on Dr. Alexander's opinion, as he has been the treating physician for over four years. Furthermore, we note that Dr. Freedman did not have the benefit of the October 6, 1999, FCE findings or a copy of [Rice's] preinjury job description.
Dr. Alexander's opinion that there is a "good probability" that [Rice] cannot consistently perform his preinjury job
- 3 - functions without missing time from work, in essence suggests that he is no longer able to do the job. Thus, we find that [Rice] has not been released to his preinjury employment.
(Citation omitted.)
In May 1999, Dr. Alexander released Rice to his pre-injury
employment. His June 28, 1999 opinion expressed concern that
there was "a good probability" that Rice might, in the future,
miss some time from work, was mere supposition, a prospective
concern that disability might reoccur. That eventuality may not
come to be. If it does, upon proper proof, an appropriate award
may be made. If it does not, no further award is appropriate.
The decision of the commission is reversed. The commission
is directed to enter an order granting United's application and
terminating Rice's award.
Reversed.
- 4 -
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