Opinion
Record No. 0974-94-3
Decided: December 6, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Lawrence L. Moise, III; Vinyard Moise, on brief), for appellant.
(Linda M. Ziegler; Karen A. Gould; Crews Hancock, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Mildred F. Gravely ("claimant") contends that the Workers' Compensation Commission erred in finding that (1) she bore the burden of proving that her post-February 15, 1993 disability was causally related to her compensable January 27, 1992 industrial accident; and (2) her evidence failed to sustain this burden. Claimant also contends that her case should be remanded to the commission so that it may consider after-discovered evidence. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
I. and II. Post-February 15, 1993 Disability
On December 28, 1992, claimant filed an application alleging an injury by accident while in the course of her employment with Rappahannock General Hospital ("employer") on January 27, 1992. At the September 22, 1993 hearing on claimant's application, the parties stipulated to certain items that would be incorporated into an award. They stipulated that claimant sustained a compensable injury by accident on January 27, 1992; that she returned to work on April 22, 1992, working 20 hours per week for a compensation rate of $66.67; that she had a change in her work hours beginning May 5, 1992, with a change in earnings to $65.00 per week; that she began a new compensation rate of $95.00 per week as of May 5, 1992; that she again became totally disabled effective September 2, 1992; and that she was able to return to her pre-injury work as of February 15, 1993. Employer defended claimant's application on the grounds that her disability and medical treatment after February 15, 1993 were not causally related to her January 27, 1992 industrial accident.
Based upon the parties' stipulations, the commission treated claimant's application as one alleging a change in condition subsequent to February 15, 1993. Thus, the commission placed the burden upon claimant to prove that her post-February 15, 1993 disability was causally related to her January 27, 1992 industrial accident.
The party alleging a change in condition must 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). The parties' stipulations support the commission's decision to treat claimant's application as one alleging a change in condition. Once claimant stipulated that she was able to return to her pre-injury work as of February 15, 1993, she bore the burden of proving that her condition had changed to the extent that she was again totally disabled as a result of the compensable January 27, 1992 industrial accident. Thus, the commission did not err in requiring claimant to meet this burden. Moreover, unless we can say as a matter of law that claimant's evidence sustained her burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Claimant sustained a back injury while working for employer on January 27, 1992. She began treatment with Dr. Robert Poole, who then referred her to Dr. Kim Marsh, a neurosurgeon. In October 1992, Dr. Marsh performed surgery on claimant's back.
In a February 15, 1993 letter from Dr. Marsh to Dr. Poole, Dr. Marsh stated that there was no evidence of a recurrent ruptured disc or any form of stenosis. As a result of his review of a claimant's CT scan, Dr. Marsh reported that he found no abnormality on claimant's right side and that the CT scan did not correlate with claimant's current complaints of right lower extremity pain. On March 12, 1993, in response to an inquiry from employer's insurance carrier, Dr. Marsh specifically stated that claimant's current complaints were not causally related to the January 27, 1992 industrial accident. On August 24, 1993, Dr. Poole stated that he could not render an intelligent opinion as to whether claimant's current complaints were related to the January 27, 1992 industrial accident because he had not examined claimant since August 6, 1992.
A July 6, 1993 note from Dr. Rodolpho Stock states that claimant will continue to have lumbar pain because of her laminectomy. However, Dr. Stock made no comment concerning whether claimant was disabled from working.
The commission accepted Dr. Marsh's opinion in finding that claimant failed to prove entitlement to temporary total disability benefits commencing February 15, 1993. Dr. Marsh's undisputed opinion provides credible evidence to support the commission's decision that claimant failed to prove that her post-February 15, 1993 disability was causally related to her January 27, 1992 accident. Because we cannot say as a matter of law that claimant's evidence sustained her burden of proof, we are bound by the commission's decision.
III. Motion for Remand to Consider After-Discovered Evidence
In the absence of a formal petition requesting the reopening of a case and the taking of additional testimony, or action by the full commission to do so, Rule 3 of the Rules of the Workers' Compensation Commission precludes the commission on review from considering additional evidence or medical reports which were not available to the deputy commissioner. Charcoal Hearth Restaurant v. Kandetzki, 1 Va. App. 327, 328-29, 338 S.E.2d 352, 353 (1986). The February 22, 1994 MRI results were available to claimant pending review of the deputy commissioner's decision by the full commission. However, claimant failed to make a motion on review to the full commission requesting that it consider after-discovered evidence. Thus, since the full commission did not have the opportunity to consider this issue, we will not consider it on appeal.
Affirmed.