Pilot Freight Carriers, Inc. v. Reeves

• Decision Date: 04 February 1986
• Docket Number: No. 0878-85,0878-85
• Citation: 1 Va.App. 435,339 S.E.2d 570
• Parties: PILOT FREIGHT CARRIERS, INC. v. Robert Bruce REEVES. Record
• Court: Virginia Court of Appeals

Page 570

339 S.E.2d 570

1 Va.App. 435

PILOT FREIGHT CARRIERS, INC. v. Robert Bruce REEVES.

Record No. 0878-85.

Court of Appeals of Virginia.

Argued Nov. 19, 1985.

Decided Feb. 4, 1986.

Mary Louise Kramer and S. Vernon Priddy, III (Sands, Anderson, Marks & Miller), Richmond, for appellant.

Dabney Overton, Jr., for appellee.

Present DUFF, BENTON and COLE, JJ.

COLE, Judge.

This appeal by Pilot Freight Carriers, Inc., the employer, raises two issues: (1) whether the finding of the Commission that Pilot had failed to prove a change in condition of the claimant, Robert Bruce Reeves, was justified from the evidence presented and (2) whether the temporary total award of the Commission should have been terminated since Reeves had not returned to work, but was operating his own trucking business. We find that credible evidence supports the findings of the Commission on both issues and affirm the decision of the Commission.

Reeves owned and operated a tractor/trailer unit and had a contract with Pilot. The agreement provided that Pilot would furnish loads of freight and Reeves would furnish the tractor/trailer unit and the driver, who was Reeves himself. Pilot paid Reeves a percentage of the proceeds received for a trip and also withheld taxes from the wages of the driver. On September 1, 1983, Reeves sustained a work related back injury when he twisted his back while attempting to chain down a load of pipe. Pilot accepted his claim as compensable and began making temporary total disability payments.

After September 1, 1983, Reeves, unable to drive himself, employed a driver to operate his tractor/trailer unit. Reeves testified, and it is not disputed, that when Dr. Chappell told him that for at least two years he would not be able to drive, he decided that he was too much in debt to sell out and could not stay in business with one truck and a driver. Accordingly, he purchased a second tractor/trailer in October of 1983. In January of 1984 he purchased a third tractor and refinanced all of the units, three tractors and two trailers, in one loan.

Shortly after the accident, Pilot cancelled its contract with Reeves, but he entered into a similar agreement with Huss, Incorporated. Reeves employed truck drivers to drive his two units and he supervised and managed the other aspects of the business. In 1982, when Reeves was operating and driving one truck, the business earned a profit of $158.00. However, in 1983 and 1984, he lost approximately $40,000.00 each year. He paid each driver from $1,500 to $3,000 per month to drive a tractor. Reeves withdrew from the business approximately $200 per week, which he used to buy gas for his personal car that was used to run business errands, to purchase business supplies, and to pay his eating expenses.

The employer filed an application for a hearing on October 9, 1984, alleging that Reeves was no longer disabled as a result of his September 1, 1983, accident, that he was operating his own trucking business, and that the temporary total award should be terminated or modified. The full Commission on June 4, 1985, dismissed the application and this appeal followed.

In support of its contention that Reeves was no longer disabled, Pilot submitted a report of Dr. Edward Chappell, Jr. dated September 24, 1984. Dr. Chappell, the treating physician and an orthopedist, examined Reeves on September 24, 1984, and reported essentially a normal examination and stated:

AP and lateral X-rays of the lumbar spine were taken which are equivocal for slight disc space narrowing at L-4, L-5 and L-5, S-1.

I have told Mr. Reeves that in my opinion any problem that he is currently experiencing is not a result of the 9/1/83 injury.

Reeves submitted a report by Dr. Neal I. Aronson dated October 25, 1984. He reported subjective complaints of back pain and diminished left ankle jerk. He stated in his report that:

I reviewed X-rays which revealed narrowing of L4-5 and L5-S1. I also reviewed a CAT scan which he brought which shows evidence of bulging discs at L5-S1, worse on the left than the right, midline bulge of significant size at L4-5 and a moderate bulge at L3-4.

It is my opinion that this patient may have had degenerative disc disease which was asymptomatic and was then definitely aggravated by a work injury. He is now intermittently incapacitated and the prognosis is guarded. The options include further conservative management, wearing of a corset and work restrictions on the one hand as opposed to myelography and possible surgical intervention. The latter would be considered elective at this time but the prognosis is guarded....

In an application for review of an award on the ground of a change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence. J.A. Jones Const. Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 202, 204 (1956).

In cases where there is conflicting medical evidence, the Supreme Court has established the rule as follows:

The general rule is that when an attending physician is positive in his diagnosis of a disease, great weight will be given by the courts to his opinion. However, when it appears ... that the diagnosis is shaded by doubt, and there is medical expert opinion contrary to the opinion of the attending physician, then the trier of the fact is left free to adopt that view which is most consistent with reason and justice.

McPeek v. P.W. & W. Coal Co., Inc., 210 Va. 185, 188, 169 S.E.2d 443, 445 (1969); Baltimore v. Benedict Coal Corp., 182 Va. 446, 453, 29 S.E.2d 234, 237-38 (1944); Bristol Builders' Supply Co. v. McReynolds, 157 Va. 468, 471, 162 S.E. 8, 9 (1932).

While Pilot accurately states the principles regarding medical expert testimony, we must disagree with its assertion that in this case no medical evidence conflicted with the testimony of the treating physician. Dr. Aronson's report stated that Reeves suffered a work related injury from which he had not yet recovered. Clearly, this conflicted with Dr. Chappell's opinion that any back problems Reeves is suffering is not a result of the accident of September 1, 1983. Given this conflict of medical expert opinions, it is for the Commission to determine the probative weight to be accorded such evidence. Having resolved the conflict in favor of Reeves on the basis of credible evidence, the finding by the Commission is binding on this Court on appeal.

The employer next contends that the claimant is no longer incapacitated as a result of the accident of September 1, 1983, because he has returned to work and is working full time as the owner and manager of...