Duncan v. ABF Freight System, Inc., 1320-94-3

• Decision Date: 23 May 1995
• Docket Number: No. 1320-94-3,1320-94-3
• Citation: 457 S.E.2d 424,20 Va.App. 418
• Parties: Timothy K. DUNCAN v. ABF FREIGHT SYSTEM, INC. Record
• Court: Virginia Court of Appeals

Page 424

457 S.E.2d 424

20 Va.App. 418

Timothy K. DUNCAN v. ABF FREIGHT SYSTEM, INC.

Record No. 1320-94-3.

Court of Appeals of Virginia,

Salem.

May 23, 1995.

Deborah W. Dobbins, Pulaski (Debra Fitzgerald-O'Connell, Gilmer, Sadler, Ingram Sutherland & Hutton, on briefs), for appellant.

Roger L. Williams, Richmond (Roya Palmer, Williams & Pierce, on brief), for appellee.

Present: KOONTZ and WILLIS, JJ., and HODGES, Senior Judge.

WILLIS, Judge.

On appeal from a decision of the Virginia Workers' Compensation Commission terminating his temporary total disability benefits, Timothy K. Duncan contends (1) that no credible evidence supports the commission's finding that he was released to pre-injury work and that his continuing disability was not causally related to his June 10, 1992 compensable injury, (2) that the commission erred in failing to conduct an evidentiary hearing, and (3) that the "on the record" hearing conducted by the commission violated his right to due process of law. We find no error and affirm the commission's decision.

I.

On appeal, we view the evidence in the light most favorable to the party prevailing below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.App. 503, 504, 339 S.E.2d 916, 916 (1986). The findings of the commission, if based on credible evidence, are conclusive and binding on this Court. Morris v. Badger Powhatan/Figgie Int'l Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877 (1986).

On December 31, 1992, Duncan's treating physician, Dr. Korsh, released Duncan to return to his pre-injury work. Dr. Korsh reiterated this release on April 20, 1993. This credible evidence supports the commission's finding that Duncan was released to perform pre-injury work with regards to his compensable back injury. "[W]hen an attending physician is positive in his diagnosis, great weight will be given by the courts to his opinion." Pilot Freight Carriers, Inc. v. Reeves, 1 Va.App. 435, 439, 339 S.E.2d 570, 572 (1986).

II.

Duncan contends the commission's finding that his present condition is not causally related to his compensable industrial injury by accident is not supported by credible evidence. He argues that Dr. Horney found that the pain in his lower back and right testicle resulted from his June 10, 1992 accident.

The evidence provided by the examining physicians established that Duncan suffered from testalgia, but none of the physicians found any physiological basis to relate that condition to his compensable back injury. Duncan's claimed diagnosis by Dr. Horney was not part of the record before the commission. The evidence in the record shows the following: Dr. Morin, an orthopaedist, found that Duncan suffered from a lumbosacral strain, but could not relate that condition to the testalgia. Dr. Korsh, a spinal surgeon, found that Duncan "has a very strange pain pattern not consistent with any normal neurological pattern." His overall impression was "that the patient most likely has no pathology emanating from his lumbar spine." Dr. Poffenberger, a urologist, diagnosed Duncan with bilateral testalgia, but stated it was more of a "musculoskeletal problem" than a urologic one. Dr. Hormel, a neurologist stated, "I cannot relate it clearly to his lumbar spine although certainly some people who have lumbar stenosis can get testalgia.... It is possible ... that his medications are contributing to his testalgia...." Dr. Joiner, an orthopaedist, limited Duncan to restrictive work duties, but never related the testalgia to the compensable back injury. Additionally, Duncan underwent a CT-scan, two MRI's, and a post-trauma myelogram, which showed no abnormality. This credible evidence supports the commission's finding.

III.

Duncan contends that the deputy commissioner erred in denying an evidentiary hearing. By letter of July 22, 1993, the deputy commissioner denied Duncan's request for an evidentiary hearing and...