                                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judge Clements and Senior Judge Coleman
Argued at Alexandria, Virginia


ARGENBRIGHT SECURITY, INC. AND
 ZURICH AMERICAN INSURANCE COMPANY
                                                         MEMORANDUM OPINION∗ BY
v.     Record No. 1532-04-4                          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                               MARCH 8, 2005
STANLEY K. JACKSON, SR.


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                William F. Karn (Butler, Williams & Skilling, P.C., on brief), for
                appellants.

                (Christopher Paul Schewe; The Law Office of Christopher P.
                Schewe, on brief), for appellee. Appellee submitting on brief.


       Argenbright Security Inc. and its insurer (employer) contend the Workers’ Compensation

Commission (commission) erred in denying employer’s application seeking termination and/or

suspension of Stanley K. Jackson, Sr.’s (employee) outstanding award of benefits. For the

reasons that follow, we affirm the commission.

                                        I. BACKGROUND

       “On appeal, we view the evidence in the light most favorable to the claimant, who

prevailed before the commission.” Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508

S.E.2d 335, 340 (1998) (citations omitted). On May 7, 2001, claimant sustained a compensable

right foot and ankle injury when a golf cart he used on his security patrol rolled over his foot.

On May 14, 2001, he sought treatment with Dr. Louis Levitt, an orthopedic surgeon. Dr. Levitt

diagnosed a contusion of claimant’s foot with resulting neurapraxia to the superficial nerve.


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Claimant saw Dr. Levitt one additional time on May 24, 2001. He described mild swelling and

tenderness in the foot. Claimant then sought treatment with Dr. Steven Green, a chiropractor, on

May 25, 2001. Dr. Green stated claimant was using a cane, had moderate swelling, “exquisite”

tenderness and was unable to “heel and toe walk.” He diagnosed claimant with a “sprain/strain

injury resulting in a contusion injury/insult to superficial nerves of the foot – peroneal and sural”

as well as the beginnings of reflex sympathetic dystrophy (RSD). On June 1, 2001, claimant

sought treatment with Dr. Hampton Jackson. Dr. Jackson diagnosed a crush injury with possible

RSD and referred claimant for an EMG and physical therapy. He also referred claimant to

Dr. Daniel Ignacio for further treatment. Dr. Jackson’s initial diagnosis was contusion, and his

final diagnosis was ankle strain, RSD and right tibial neuritis. An EMG done in June 2001 was

normal. Claimant received physical therapy from June 5, 2001 through March 6, 2002, when he

was released to a home exercise program.

       In June 2001, Dr. Ignacio began treating claimant and he remained his primary treating

physician. He diagnosed a crush injury, right tibial neuritis, right tarsal tunnel syndrome and

RSD. Each office note states claimant came to the appointment limping and using a cane.

Dr. Ignacio treated claimant conservatively, and claimant showed no improvement.

       On April 4, 2003, the employer sent claimant for an Independent Medical Evaluation

(IME) with Dr. Howard G. Stern. Dr. Stern submitted a fourteen-page report. It included his

objective physical findings after an examination of claimant, his analysis of the medical reports

of the other physicians and his subjective conclusions. Claimant arrived at the appointment

limping and using his cane. Claimant performed all physical tests, including hopping on each

foot, straight gait, “heel and toe walk” and balance without his cane, with normal results.

Dr. Stern also found the measurements of claimant’s feet to be equal, with no tenderness, no

warmth and no instability. X-rays and a bone density test were normal, thus ruling out RSD.



                                                -2-
Dr. Stern found claimant to have a resolved soft tissue injury to his right foot and right ankle. He

stated claimant was fully recovered from those injuries and that no further treatment was

necessary. He also said “the claimant’s subjective complaints are out of proportion to objective

findings in this case.”

       On September 18, December 8, and December 10, 2003 the employer obtained

surveillance videos of claimant that showed him walking up and down the outside steps of a

townhouse, to and from a school bus stop on an incline and on flat pavement without limping or

using his cane. Dr. Stern viewed those videos and submitted an addendum on December 18,

2003 in which he stated claimant appeared to be ambulating normally with no indication of pain

or discomfort thus confirming the conclusions of his earlier report.

       A few hours after the September 18, 2003 surveillance video was taken, claimant saw

Dr. Ignacio. Dr. Ignacio’s office notes from that day state claimant arrived limping, using his

cane and “experiencing chronic pain and swelling” that was “[worse] with increased activities

such as [walking] and standing.” He detailed claimant’s complaints of chronic pain and

swelling, numbness, tingling and weakness. He noted mild swelling in the right foot and ankle

with moderate and limited motion as well as tenderness along the collateral and tarsal ligaments

and the tibial nerves. He found claimant’s foot to be cold and hyposethetic. He gave claimant

Ultracet and Inderal prescriptions, referred him for a bone scan and a neurological evaluation of

the chronic tibial neuritis. He continued him on his light duty work restrictions “to avoid

prolonged standing and walking no more than one (1) hour to eight (8) hours.”

       When claimant was questioned at the hearing about the difference in his condition

between the time of the surveillance video and his appointment with Dr. Ignacio, he stated he

was having a “good day” and that he had soaked his foot the night before. He also stated he did

not remember Dr. Stern asking him to perform any physical activity except kneeling.



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       The deputy commissioner found Dr. Stern’s report to be persuasive and terminated

claimant’s ongoing benefits. Specifically, the deputy commissioner stated:

               We observed the claimant at the hearing, and we were not
               persuaded by his testimony that he periodically experiences “good
               days and bad days,” and that on September 18, 2003, he was
               having a “good day,” and therefore did not need to use his cane.
               We instead conclude that the claimant apparently exaggerated his
               condition and continuing symptoms, and that Dr. Ignacio’s
               opinions regarding the claimant’s continuing disability are
               therefore based upon an inaccurate or incomplete history.
               Although we recognize and respect Dr. Ignacio’s status as the
               claimant’s primary treating physician, we will instead rely upon
               Dr. Stern’s conclusions regarding the claimant’s work status. We
               will also defer to Dr. Stern’s education and training as an
               orthopedic surgeon, and we give little weight to Dr. Green’s
               comments regarding Dr. Stern’s initial IME report.

       The full commission reversed the deputy and held that:

                       On July 9, 2003, Dr. Ignacio released the claimant to light
               duty work. He elaborated on that restriction on September 18,
               2003, when he instructed the claimant to “avoid prolonged
               standing and walking no more than one (1) hour to eight (8)
               hours.” Although Dr. Ignacio was not privy to the surveillance
               videotape, we note that the tape does not show the claimant
               exceeding his restrictions. The videotape evinced that the claimant
               is capable of short periods of standing and walking consistent with
               his restrictions. We find that the surveillance video does not
               establish that the claimant failed to accurately and completely
               report his condition to Dr. Ignacio.

       The commission also noted that “[Dr. Green’s] opinion on the claimant’s right foot and

right ankle condition exceeds the statutory definition of chiropractic practice. We afford no

weight to Dr. Green’s opinion.”

       Employer appealed that decision.




                                               -4-
                                          II. ANALYSIS

       Employer contends that the commission erred in disregarding the deputy commissioner’s

“credibility finding” without sufficient explanation in finding employer failed to meet its burden

of proof to terminate benefits. We disagree.1

       “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.” Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438, 339 S.E.2d 570, 572

(1986). See also Westmoreland Coal Co. v. Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841

(1999); Rossello v. K-Mart Corp., 15 Va. App. 333, 335, 423 S.E.2d 214, 216 (1992); Great

Atlantic & Pacific Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987).

       “‘Decisions of the commission as to questions of fact, if supported by credible evidence,

are conclusive and binding on this Court.’” WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494

S.E.2d 147, 152 (1997) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409

S.E.2d 824, 826 (1991)). “‘The fact that there is contrary evidence in the record is of no

consequence.’” Id. (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d

32, 35 (1991)).

       “Medical evidence is not necessarily conclusive, but is subject to the commission’s

consideration and weighing.” Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677,

401 S.E.2d 213, 214 (1991). “The general rule is that when an attending physician is positive in

his diagnosis of a[n injury], great weight will be given by the courts to his opinion.” Pilot



       1
          We note employer also contends the commission erred in awarding interest on the
award and in overruling employer’s objection to the admission of Dr. Green’s report. Employer
failed to raise the issue of interest before the commission or file a request for rehearing or
reconsideration; therefore, it cannot be raised in this appeal. See Rule 5A:18. The issue of
Dr. Green’s report is moot. The commission stated that it did not consider the report in
rendering its opinion.

                                                -5-
Freight Carriers, 1 Va. App. at 439, 339 S.E.2d at 572 (citing 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)). See also Ogden Aviation Services v. Saghy, 32 Va. App. 89,

101, 526 S.E.2d 756, 761-62 (2000); Allen & Rocks, Inc., 28 Va. App. at 673, 508 S.E.2d at 340;

Fingles v. Tatterson, 22 Va. App. 638, 641, 472 S.E.2d 646, 647 (1996). “[A] specific, recorded

observation of a key witness’ demeanor or appearance in relation to credibility is an aspect of the

hearing that the commission may not arbitrarily disregard. When the commission does not

follow such a finding, the record should indicate that the commission did not arbitrarily ignore

the finding.” Goodyear Tire and Rubber Co. v. Pierce, 5 Va. App. 374, 382, 363 S.E.2d 433,

437 (1987). However,

               [w]hen the deputy commissioner’s finding of credibility is based,
               in whole or in part, upon the claimant’s appearance and demeanor
               at the hearing, the commission may have difficulty reversing that
               finding without recalling the witness. On the other hand, if the
               deputy commissioner’s determination of credibility is based on the
               substance of the testimony and not upon the witness’ demeanor
               and appearance, such a finding is as determinable by the full
               commission as by the deputy.

Id. at 383, 363 S.E.2d at 438.

       In the instant case, the deputy commissioner made no specific credibility determination

based on the appearance and demeanor of the claimant. Rather, he stated that he was

“unpersuaded” by claimant’s testimony and concluded that claimant failed to accurately report

his condition to his treating physician. This is not the “specific recorded observation”

anticipated by Goodyear that would require an explanation by the commission to reach a

contrary conclusion. Thus, the commission did not have to specifically address the deputy

commissioner’s comments regarding claimant’s testimony. Additionally, we note that the

commission based its opinion on two factors unrelated to this issue. It accorded greater weight


                                               -6-
to the opinion of the treating physician, Dr. Ignacio, rather than Dr. Stern, who saw the claimant

one time for an IME. See Pilot Freight Carriers, Inc., 1 Va. App. at 439, 339 S.E.2d at 572.

Lastly, it found the surveillance video, while showing claimant walking well, did not show him

exceeding the restrictions propounded by Dr. Ignacio, his treating physician. Thus, credible

evidence supports the commission’s opinion.

       For the foregoing reasons, we affirm the decision of the commission.

                                                                                         Affirmed.




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