Opinion
Record No. 0029-94-2
Decided: October 11, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
Malcolm Parks, III (Maloney, Yeatts and Barr, P.C., on brief), for appellant.
C. Ervin Reid (Wright, Robinson, McCammon, Osthimer Tatum, on brief), for appellees.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Marvin T. Warren (Warren) appeals a decision of the Workers' Compensation Commission (commission) denying him continuing wage loss compensation and medical benefits for a compensable injury sustained in 1991. Warren contends the commission erred in finding that he had been released to return to employment with respect to his physical condition and that his psychological disability, which prohibited him from returning to work, was not causally related to his industrial injury. Warren further contends that the commission erred in finding that his employer was not estopped to deny liability for medical treatment of that disorder by its prior payment for treatment. Warren also challenges the commission's determination that, should he later be entitled to a resumption of wage loss compensation, his employer would not be prohibited from seeking a reduction in the calculation of his average weekly wage. Finding no error, we affirm.
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. Warren was injured June 17, 1991 during the course of his employment as a member of a surveying party employed by Bengston, Debell, Elkin and Titus, Ltd. (employer). The claim was accepted as compensable, and benefits were paid through December 11, 1992. On that date, employer filed an application to discontinue benefits on the ground that Warren had recovered from the injury and that his claimed psychiatric disability was not related to his industrial injury. Employer gave notice that it also wished to challenge the agreed upon average weekly wage upon which benefits had been based. Employer asserted that the wage had been computed in error.
The medical evidence concerning Warren's physical condition showed that Dr. Nuarang G. Gill, the treating neurologist, released Warren for work on February 24, 1992. After leaving Dr. Gill's care, Warren began receiving treatment from Dr. Karl H. Mueller, a psychiatrist. Dr. Mueller noted that while Warren's mental history included a tendency to have panic attacks, these problems appear to have abated prior to the June, 1991 accident and did not resume until December, 1991. Dr. Mueller concluded that the resumption of these problems was caused by the industrial accident and its sequela.
Warren was then evaluated by an independent psychiatrist at employer's request. Dr. Emory F. Hodges reviewed Warren's history and concluded that his mental condition was the product of past multiple substance abuse and ongoing methadone treatment.
The commission found that the evidence supported a finding that Warren's continuing disability was related to his psychological disorder and was not the product of his industrial injury. Although employer made payments for treatment received from Dr. Mueller, the commission found that these payments were made prior to the resolution of the question of causation and that employer was not estopped from denying liability after the resolution of that issue.
The commission also found that, although it appeared that the average weekly wage had been miscalculated, the issue was moot because benefits had been terminated and employer had not sought a credit for the overpayment. The commission stated that the matter could be revisited if circumstances warranted.
I. FINDINGS CONCERNING PHYSICAL ABILITY TO RETURN TO WORK
Warren contends that the record failed to establish that Dr. Gill was sufficiently familiar with his employment to release him to return to work and that the commission improperly placed the burden of establishing a lack of such familiarity on him. We disagree.
"General principles of workman's compensation law provide that 'in an application for review of 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) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Accordingly, the burden here rested with the employer to prove that no cause arising out of the industrial injury prohibited Warren from returning to his pre-injury employment.
The commission may rely on an attending physician's "unequivocal statement that [the claimant is] fully able to return to unrestricted work and[, in] the absence of any medical evidence to the contrary, the Commission [can] only conclude [that the claimant is] able to return to unrestricted work . . . ." Mace v. Merchants Delivery, 221 Va. 401, 403-04, 270 S.E.2d 717, 719 (1980). In other words, where the medical evidence does not suggest any physical limitation on a claimant, the employer need not also show that the physician was familiar with the physical requirements of the job and cognizant of the types of physical impairments which would prohibit its performance. This conclusion does not impermissibly shift the burden of proof to the claimant. Only if the employee wishes to challenge the accuracy of the medical report and allege that some physical limitation related to his or her injury prohibits performance of the job does the burden of proof fall upon the employee, and quite properly so.
"[I]t is fundamental that a finding of fact made by the Commission is conclusive and binding upon this court on review." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). The commission found that Dr. Gill's report was "the only medical evidence before [it] as to the physical injuries sustained in the industrial accident and persuasively establishe[d] that the claimant ha[d] recovered from those injuries and can return to his pre-injury employment." We find no error with this finding of fact and are, accordingly, bound by it.
II. FINDINGS CONCERNING PSYCHOLOGICAL ABILITY TO RETURN TO WORK
Two physicians offered conflicting opinions concerning the severity and causality of Warren's continuing psychological complaints. Warren asserts the commission relied upon Dr. Hodges's opinion, disregarding that of the treating physician, even though Dr. Hodges's opinion "was conclusory and . . . was utterly without foundation."
We agree with Warren that the commission should give great weight to the diagnosis of the treating physician. Ellis v. Commonwealth of Virginia, Dept. of Highways, 182 Va. 293, 303, 28 S.E.2d 730, 735 (1944). Nonetheless, the treating physician's opinion is not binding on the commission where additional direct medical evidence appears in the record. C.D.S. Constr. Services v. Petrock, 218 Va. 1064, 1071, 243 S.E.2d 236, 241 (1978). Resolving conflicts in the evidence is properly left to the commission. Id.; see also Penley v. Island Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
Dr. Hodges's diagnosis letter contains an extensive report of his examination of Warren and the nature and basis of his conclusions from that examination. The record also contains Dr. Hodges's deposition, which further details the basis for his diagnosis. Based upon the evidence before it, the commission chose to rely on Dr. Hodges's diagnosis rather than that of Dr. Mueller. We will not disturb that exercise of discretion.
Warren further asserts the record fails to establish that Dr. Hodges was sufficiently familiar with Warren's employment to render an opinion on his ability to return to work. However, as the commission relied upon Dr. Hodges's opinion solely to determine the cause of Warren's psychological disorder, a familiarity with his employment was not required.
III. ESTOPPEL
The commission found that employer made voluntary payments of medical benefits for the treatment of Warren's psychological complaint while challenging the causal relationship of that disorder to his industrial injury. Voluntary payment of benefits does not estop an employer from later asserting the invalidity of the underlying claim. Nabisco Brands, Inc. v. Jones, 12 Va. App. 1028, 1033, 407 S.E.2d 919, 921 (1991); see also Clark v. United Airlines, 223 Va. 197, 200, 288 S.E.2d 441, 442-43 (1982). The voluntary payments made by the employer were not an admission of its liability. Rucker v. Thrift Transfer, Inc., 1 Va. App. 417, 420, 339 S.E.2d 561, 562 (1986). Accordingly, we cannot say the commission erred in finding that employer was not estopped from denying its liability upon the finding that the psychological disorder was not causally related to Warren's industrial injury.
IV. RECALCULATION OF WEEKLY WAGE
The commission properly vacated the deputy commissioner's determination of the merits of the employer's claim that a reduction in the calculation of the weekly wage was warranted as moot. "As a general rule, '[m]oot questions are not justiciable and courts do not rule on such questions to avoid issuing advisory opinions.' " In re Times-World Corp., 7 Va. App. 317, 323, 373 S.E.2d 474, 477 (1988) (quoting United States v. Peters, 754 F.2d 753, 757 (7th Cir. 1985)). While a court may choose to address an issue that is likely to reoccur and yet avoid review, id., such is not the case here. Should Warren become eligible for additional wage loss benefits at some point in the future, the issues of whether the commission may adjust the calculation of his weekly wage and, if so, what the proper recalculation of that wage would be can be revisited at that time, and any action of the commission would be subject to review. Accordingly, we affirm the commission's determination of mootness as to this issue.
For these reasons, we affirm the decision of the commission denying further wage loss and medical benefits to Warren.
Affirmed.