The Fingles Company, et al. v Richard E. Tatterson

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COURT OF APPEALS OF VIRGINIA
Present : Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
THE FINGLES COMPANY and
MANUFACTURERS' ALLIANCE INSURANCE COMPANY
OPINION
V. Record No. 2882-95-1
BY JUDGE JOSEPH E. BAKER JULY 9, 1996
RICHARD E. TATTERSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kathryn Spruill Lingle (Midkiff & Hiner,
P.C., on briefs) , for appellants.
Karen M. Rye (Holly L. Bonham, on brief), for appellee.
The Fingles Company and Manufacturers' Alliance Insurance Company (jointly referred to herein as employer) appeal the decision of the Workers' Compensation Commission (commission) holding that Richard E. Tatterson (claimant) had not been released to return to his pre-injury employment. Finding the decision of the commission to be in error, we reverse.
Claimant sustained a fracture of his right femur on February 18, 1992, while working for employer as a sheet metal journeyman. The claim was accepted as compensable and compensation benefits were paid.
Under the direction of Dr. Harry J. Molligan, orthopedic/trauma surgeon, claimant underwent a "reconstruction IM nailing of his right femur." Following the surgery, claimant returned to restricted work on June 4, 1992, but became disabled

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again when he underwent a second surgical procedure on July 10,
1992 to remove screws in his femur.1
In January 1994, after Dr. Molligan discontinued his
practice, claimant came under the care of Dr. John J. Schaffer,
orthopedic surgeon, sports medicine, and arthroscopic surgery
specialist. 	In December 1994, after several examinations, Dr.
Schaffer recommended to employer that claimant be evaluated by
his associate, Dr. Wilford K. Gibson, orthopedic/general surgeon
and fracture/trauma specialist.
Dr. Gibson evaluated claimant on December 9, 1994. 	His
examination revealed that claimant was able to ambulate without
aids and without a noticeable limp. 	Dr. Gibson noted a full
active range of motion of the right hip and knee. 	Muscle
strength was graded as five out of five in the quadriceps, hip
flexors, hamstrings, tibialis anterior, and gastrosoleus muscle
complex. 	Dr. Gibson assessed claimant as having a "well-healed
right femur fracture with symptomatic hardware." 	He recommended
that claimant "return to full activities, which would include
work."
Upon receipt of this report, on December 28, 1994, employer
wrote Dr. Schaffer requesting his opinion concerning claimant's
ability to return to work and asked specifically whether he felt
1On May 5, 1993, claimant submitted to an independent
examination by Dr. Colin W. Hamilton, an orthopedic surgeon, who
reported that claimant "needs further surgery, very likely
bone-grafting, to allow the fracture to heal."

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that claimant "could return to full duty work." 	Employer further
asked, "[i]f you do not feel that [claimant] can be released to
full duty work, can you please state what restrictions, if any,
you would impose on his working capabilities."
In Dr. Schaffer's reply to employer, he wrote that he agreed
with Dr. Gibson's evaluation and would "not alter [Dr. Gibson's]
suggestions about either returning to work or work status or
physical limitations." 	He did not place any restrictions on
claimant's ability to return to work.
In a further report dated June 13, 1995, Dr. Schaffer stated
that claimant "could return to full pre-injury employment as a
journeyman."
Employer filed an application alleging a change in condition
and seeking termination of compensation benefits. 	The deputy
commissioner held that employer met its burden of proof and
terminated compensation benefits.
On review, a majority of the commission reversed the deputy
commissioner. 	In its opinion, the commission asserted that
nothing in the record indicated that either Dr. Gibson or Dr.
Schaffer was familiar with claimant's pre-injury duties, and held
that employer had presented no evidence that claimant had been
unequivocally released to return to unrestricted work. 	We
disagree.
The commission erred in finding that neither Drs. Gibson nor
Schaffer unequivocally stated that claimant was fully able to

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return to unrestricted work. 	In fact, in its opinion, the
commission recognized that Dr. Gibson "unequivocally opined that
the claimant could return to his full activities 'which would
include work . . . .'" 	Dr. Schaffer, claimant's treating
physician, concurred with Dr. Gibson's assessment and affirmed
that claimant "could return to full pre-injury employment as a
journeyman." 	See Pilot Freight Carriers, Inc. v. Reeves, 1 Va.
App. 435, 439, 339 S.E.2d 570, 572 (1986) (the opinion of a
treating physician is entitled to great weight).
In response to employer's letter of December 28, 1994, Dr.
Schaffer listed no restrictions on claimant's working
capabilities. 	No medical evidence contradicted the opinions of
Drs. Schaffer and Gibson.
An employer alleging a change in condition bears the burden
of proving that the claimant is fully able to perform the duties
of his pre-injury employment. 	See Reeves, at 438-39, 339 S.E.2d
at 572. 	That burden is met by uncontradicted evidence which
establishes that no restrictions have been placed on the
claimant's ability to return to work. 	Mace v. Merchants Delivery
Moving & Storage, 221 Va. 401, 403, 270 S.E.2d 717, 719 (1980)
(with unequivocal medical evidence that the claimant was fully
able to return to unrestricted work and the absence of any
evidence to the contrary, the commission could only conclude that
the claimant was able to return to work, regardless of the
placement of the burden of proof). 	Thus, where uncontradicted

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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 the type
of physical limitations which would prohibit its performance.
Id.
This conclusion does not impermissibly shift the burden of
proof to a claimant. 	Only if a claimant desires to challenge the
accuracy of the employer's evidence and allege that some physical
limitation related to his injury prohibits performance of his
pre-injury job does the claimant then bear the burden to present
contrary evidence. 	If a claimant presents such evidence, the
commission must then make a finding of fact, weighing the
evidence produced and determining whether the employer met its
burden to prove a change in condition. 	If a claimant fails to
produce such evidence, the commission can only conclude that the
claimant has been released to return to his pre-injury
employment. 	Here, claimant introduced no evidence to contradict
the unequivocal opinions of Drs. Schaffer and Gibson.
We hold that, because the evidence of the treating
physicians discloses unequivocally that claimant has no
limitation on his ability to work, and that evidence is not
contradicted, the commission erred when it refused to enter an
order granting the relief sought by employer. 	Accordingly, we
reverse and remand this case with direction that an order be
entered consistent with this opinion.

Reversed and remanded.
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