COURT OF APPEALS OF VIRGINIA
Judges Benton, Coleman and Willis
FEDERAL EXPRESS CORPORATION
Record No. 1947-99-2
DECEMBER 21, 1999
CONNIE T. KLYVER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roger L. Williams; John T. Cornett, Jr.;
Williams, Lynch & Whitt, on brief), for
(B. Mayes Marks, Jr.; Marks and Williams,
P.C., on brief), for appellee.
Federal Express Corporation (employer) contends that the
Workers' Compensation Commission erred in (1) finding that
employer failed to prove that Connie T. Klyver was able to
return to her pre-injury work as of August 6, 1998; (2) finding
that Dr. Howard Stern's August 6, 1998 examination of Klyver
constituted a second independent medical examination which
required authorization under Code § 65.2-607; (3) finding that
Klyver's compensable back injury rather than her unrelated knee
injury continued to disable her from returning to her pre-injury
employment; and (4) failing to address the issue of whether
Klyver unjustifiably refused medical treatment as a result of
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
her inability to continue work hardening due to her knee
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.
"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
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
The commission's findings are binding and conclusive
upon us, unless we can say as a matter of law that employer's
evidence sustained its burden of proof.
See Tomko v. Michael's
Plastering. Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On July 28, 1998, Dr. Sheryll A. Bryan, Klyver's treating
physician, who diagnosed Klyver as suffering from chronic
sacroiliac joint dysfunction, opined that Klyver could not
return to her pre-injury work as a courier and that she would
need to consider other job options.
On August 20, 1998, Dr.
Bryan confirmed that Klyver's low back problem was due to her
compensable March 20, 1997 injury by accident and that Klyver
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was not capable of returning to her pre-injury job as a courier
due to her low back problems.
Dr. Bryan referred Klyver to Sheltering Arms Hospital for
Dr. Katherine Dec, who followed Klyver during
the work hardening program, noted that as of July 23, 1998,
Klyver continued to suffer from right SI joint dysfunction, for
which she should follow-up with Dr. Bryan.
Dr. W.E. Thompson performed an independent medical
examination of Klyver at the request of employer on April 17,
Dr. Thompson concluded that Klyver would benefit from
completing the work hardening program and that she should be
able to return to unrestricted work upon completion of such a
On August 6, 1998, Dr. Stern examined Klyver at employer's
Although Klyver would not allow Dr. Stern to examine
her back because she understood that the examination was to be
limited to her knee problem, Dr. Stern concluded that Klyver's
back had reached maximum medical improvement and that she could
return to her pre-injury work as a courier.
Dr. Stern believed
he possessed enough information based upon Klyver's medical
records to render an opinion to a reasonable degree of medical
certainty regarding her ability to return to work with respect
to her back condition.
In denying employer's application to terminate Klyver's
award, the commission accepted the opinions of Drs. Bryan and
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Dec and rejected the contrary opinion of Dr. Stern.
holding, the commission found as follows:
Dr. Stern examined [Klyver] on one occasion.
He was not allowed to examine [her] lower
back. Because this was a second independent
evaluation, [Klyver] was within her rights
to decline such evaluation. In his
deposition testimony, [Dr. Stern] indicated
that his decision was based on [Klyver's]
diagnostic testing and medical reports from
other physicians. He did note that there
was some objective evidence; however,
whether [Klyver] had pain on any given day
would not change his opinion.
We find far more persuasive the reports
of Dr. O'Bryan [sic], [Klyver's] treating
physician, including the August 20, 1998,
response to the carrier and the notes of Dr.
Dec contained in the Sheltering Arms
reports. These physicians had the
opportunity to examine [Klyver] completely
and to review the same diagnostic studies
and medical reports as Dr. Stern. They have
been actively involved in [Klyver's]
treatment. We find their opinion that
[Klyver] is currently unable to return to
her regular employment as a courier with
[employer] far more persuasive than Dr.
Stern's, who relied on their reports to
reach his conclusion.
The commission articulated legitimate reasons for giving
little probative weight to Dr. Stern's opinion.
In light of
these reasons and the opinions of Drs. Bryan and Dec, the
commission was entitled to conclude that the opinions of Drs.
Stern and Thompson did not constitute sufficient evidence to
prove that Klyver was capable of performing her pre-injury
"Medical evidence is not necessarily conclusive,
but is subject to the commission's consideration and weighing."
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Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 215 (1991).
Moreover, the opinions and medical
records of Drs. Bryan and Dec support the commission's
conclusion that "[w]hile [Klyver] may also have experienced a
knee injury, the weight of the evidence is that her back
continues to disable her from returning to her regular
Because the medical evidence was subject to the
commission's factual determination, we cannot find as a matter
of law that the evidence proved that as of August 6, 1998 Klyver
was capable of returning to her pre-injury employment.
Employer requests that we reverse the commission's finding
that Dr. Stern's examination constituted a second independent
medical examination which required prior approval from the
commission pursuant to Code § 65.2-607.
Even though the commission found Dr. Stern's examination
was not properly authorized, it considered Dr. Stern's medical
reports in their entirety, along with the remaining medical
By doing so, the commission rendered this issue moot.
Accordingly, we will not address it.
This Court does not render
advisory opinions on moot questions.
See Commonwealth v.
Harley, 256 Va. 216, 219, 504 S.E.2d 852, 854 (1998).
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Employer did not request at the hearing before the deputy
commissioner or on review before the full commission that
Klyver's benefits be terminated or suspended on the ground that
she had refused medical treatment because she was removed from
work hardening due to her knee injury. 1
Accordingly, we will not
consider this theory of recovery for the first time on appeal.
See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355
S.E.2d 347, 349 (1987); Rule 5A:18.
For these reasons, we affirm the commission's decision.
Klyver's request that the costs of this proceeding be assessed
against employer is granted.
We note that on the August 18, 1998 Employer's Application
for Hearing, employer indicated that Klyver was taken out of
work hardening due to an unrelated knee problem as of July 24,
1998. However, employer did not indicate that Klyver had
refused medical treatment and did not raise this issue at the
hearing before the deputy commissioner or upon review to the
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