Recycling Center, Inc., et al. v Vitelio Martinez

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bray and Senior Judge Overton
RECYCLING CENTER, INC. AND
RELIANCE INSURANCE COMPANY
MEMORANDUM OPINION*
v. 	Record No. 1074-00-4 	PER CURIAM
OCTOBER 17, 2000
VITELIO MARTINEZ
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(S. Vernon Priddy III; Jeffrey W. Saunders;
Sands, Anderson, Marks & Miller, on brief),
for appellants.
(Stephen A. Bou; Bou & Bou, on brief), for
appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Recycling Center, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that Vitelio Martinez (claimant) was released to return to
full-duty employment as of November 19, 1998. 	Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. 	Accordingly, we summarily affirm the
commission's decision. 	See Rule 5A:27.
"General principles of workman's compensation law provide
that '[i]n 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)). 	Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission's findings
are binding and conclusive upon us. 	See Tomko v. Michael's
Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence proved that on June 2, 1998,
claimant was hit by a truck in the course of his employment,
causing him to sustain severe facial lacerations, a cervical
fracture at the C4-5 level, multiple transverse fractures at the
L3-4 level, and an AC joint separation of the left shoulder.
Employer accepted the claim as compensable and paid compensation
benefits pursuant to an award until March 10, 1999.
On March 2, 1999, employer filed an application seeking to
terminate claimant's benefits on the ground that he had been
released to return to his pre-injury work as of February 9, 1999
by Dr. Adel Kebaish. 	Employer amended its application at the
September 14, 1999 hearing to allege that claimant had also been
released to return to his pre-injury work as of November 19,
1998 by Dr. Kebaish.
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On September 3, 1998, Dr. Kebaish, claimant's treating
orthopedic surgeon, released claimant to return to work on a
modified schedule of twenty hours per week, with no lifting of
more than twenty pounds, for four weeks, beginning September 15,
1998. 	On September 10, 1998, Dr. Kebaish noted that claimant
has a left AC joint separation in his shoulder. 	Dr. Kebaish
continued claimant on light duty.
On October 22, 1998, Dr. Kebaish opined that claimant could
work twenty hours per week for three weeks, then thirty hours
per week for three weeks, and then full time.
On November 19, 1998, Dr. Kebaish noted that claimant still
complained about left shoulder symptoms. 	However, Dr. Kebaish
opined as follows:
[C]onsidering the description of
[claimant's] job, I think he is capable to
return to regular duty with minimal
modification. 	He does not believe so;
accordingly, I referred him for a second
opinion to Dr. Seung Paik regarding his left
shoulder. 	Patient should be seen here in
four weeks for final f/u.
As an addendum to his November 19, 1998 office notes, Dr.
Kebaish noted that claimant's rehabilitation nurse called him
and stated that claimant's "lawyer is quite unhappy about my
sending him back to work, and requested some clarification."
Dr. Kebaish wrote that he "would be happy to refer [claimant] to
Dr. Paik."
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On November 30, 1998, Dr. Paik examined claimant. 	Dr. Paik
noted that claimant came to see him "for an orthopedic
consultation with a case manager to discuss his present time
condition and the possibility of his returning to work." 	Dr.
Paik prescribed outpatient physical therapy for one month and
strength exercises. 	Dr. Paik opined that claimant should be
restricted from full duty with lifting of no more than twenty
pounds. 	On December 30, 1998, Dr. Paik noted that he discussed
AC joint surgery with claimant. 	At that time, Dr. Paik
continued claimant's previous restrictions for one month.
On January 29, 1999, Dr. Paik noted that claimant still
suffered from the left shoulder problem and pain in his neck.
Dr. Paik noted that "his returning to his previous duties at
work is pretty much guarded." 	Dr. Paik restricted claimant to
occasional lifting up to twenty pounds and frequent lifting up
to ten pounds.
On March 24, 1999, Dr. Paik noted that claimant still had
soreness in his neck and left shoulder and that he still had
"pain [in his left shoulder] with pressure when doing any heavy
lifting." 	Dr. Paik opined as follows:
[Claimant] should not return to work at the
present time, which requires running and
jumping. 	It also requires him picking up
heavy trash bags. 	His returning to his
regular duties at work is pretty much
guarded at the present time. 	He should find
a job that requires less lifting and stress.
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On February 9, 1999, Dr. Kebaish signed off on a job
description for claimant provided to him by employer. 	The job
description indicated that claimant was required to frequently
lift and carry between fifteen and twenty-five pounds.
Claimant testified that his job required that he frequently
lift between thirty and forty-pound recycling buckets. 	Claimant
stated that he could not perform this type of lifting, because
it caused him neck and left shoulder pain. 	Claimant stated that
he attempted to return to work on two days in November 1998, but
he could not continue due to the pain caused by lifting the
heavy recycling buckets. 	Claimant also testified that his job
required lifting above his shoulders, which he could not do
without pain.
Based upon claimant's testimony and Dr. Kebaish's opinions,
the commission ruled that employer failed to prove that claimant
was capable of performing his pre-injury work as of November 19,
1998. 	In light of claimant's testimony regarding his actual job
duties, his failed attempt to return to work in November 1998,
and Dr. Paik's opinions, the commission was entitled to give
little probative weight to Dr. Kebaish's November 19, 1998 work
release and his February 9, 1999 approval of the job
description.
We find no merit in employer's argument that the commission
erred in treating Dr. Paik's opinions as a defense to employer's
application. 	As Dr. Paik noted, the referral to him was to
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address the need for surgical intervention with regard to the AC
joint separation and to discuss the possibility of claimant
returning to work. 	Dr. Paik's treatment and opinions rendered
close in time to Dr. Kebaish's treatment and opinions were
properly before the commission and constituted evidence which
conflicted with Dr. Kebaish's opinion regarding claimant's
ability to return to his pre-injury employment as of November
19, 1998. 	The sole issue before the commission concerned
claimant's ability to return to full-duty employment. 	Employer
bore the burden of proof on this issue, and the commission, as
fact finder, was entitled to consider conflicting evidence in
ruling upon employer's application.
Based upon this record, we cannot find as a matter of law
that employer's evidence sustained its burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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