Walter Everett Childress v. Appalachian Power Co.

• Court: Court of Appeals of Virginia
• Decided: February 13, 1996
• Docket: 0149953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Overton Argued at Salem, Virginia

WALTER EVERETT CHILDRESS

v. Record No. 0149-95-3 MEMORANDUM OPINION * BY JUDGE NELSON T. OVERTON APPALACHIAN POWER COMPANY FEBRUARY 13, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Jerry O. Talton for appellant. Richard D. Lucas (Abigail L. Perkins; Woods, Rogers & Hazlegrove, P.L.C., on brief), for appellee.

Walter Childress appeals from the commission's opinion which

relieved Appalachian Power, his employer, from liability for

certain medical expenses. Childress claims that this issue was

not properly before the commission. Employer cross-appeals from

a separate finding that Childress did not unjustifiably refuse

medical treatment. On the first issue, we find that the medical

expenses were not properly before the commission, and we vacate

that portion of the commission's decision. We further find that

Childress did not unjustifiably refuse medical treatment and

affirm the commission on that issue.

Childress suffered a compensable injury in 1985 while

working for Appalachian Power and, over the course of several

years, experienced recurrent disability. In 1994, Childress

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. refused a selected employment position offered by his employer.

In addition, he had begun seeing a psychiatrist and seeking

medical treatment from a physician not listed on the employer's

offered panel. The employer filed applications for a hearing,

claiming that: (1) Childress unjustifiably refused the proffered

selected employment; and (2) by seeking treatment with an

unauthorized physician, Childress had in effect refused medical

treatment. The commission, on review, found that Childress had not

refused the selected position without justification. It also

found, however, that Childress' psychological problems and

additional medical treatment were not compensable by the

employer.

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). "[I]t

is fundamental that a finding of fact made by the commission is

conclusive and binding upon this court on review. A question

raised by conflicting medical opinion is a question of fact." Department of Corrections v. Powell, 2 Va. App. 712, 714, 347

S.E.2d 532, 533 (1986). The fact that no contrary evidence

exists in the record is of no consequence if credible evidence

supports the commission's finding. Wagner Enters., Inc. v.

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

The commission determined that Childress was physically

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this determination upon submitted medical records from several

physicians. Credible evidence does exist to support the

commission, and its decision must be affirmed.

The commission also found that Childress' additional

expenses were not the employer's responsibility. This finding,

however, was inappropriate for the commission to make. No claim

for benefits for those expenses had been made. The only issues

on the employer's application for hearing were the refusal of the

selected employment and the refusal of medical treatment. The

commission found that the refusal of selective employment was not

unjustified. The deputy commissioner properly decided that

seeking unauthorized care does not equate with an unjustified

refusal of medical treatment. Davis v. Brown & Williamson

Tobacco Co., 3 Va. App. 123, 126, 348 S.E.2d 420 (1986). After

those two issues were settled, the commission had no reason to

make further findings, especially as no claim for benefits for

those expenses had been made.

Accordingly, the commission's decision with respect to the

compensability of the psychological disability and the additional

medical expenses is vacated. The parties are free to initiate

other proceedings to address this issue if they be so advised.

Affirmed in part, reversed in part.

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