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, Willia ms & Skilling, P.C. , on brief), for appellants. (Christopher Paul Schewe; Th e 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 employe r’s application seeking termination and/or suspension of Stanley K. Jackson, Sr.’s (empl oyee) 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 us ed on his security patrol rolled over his foot. On May 14, 2001, he sought treatment with Dr. Loui s 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 opin ion is not designated for publication.-2- Claimant saw Dr. Levitt one additional time on May 24, 2001. He described mild swelling and tenderness in the foot. Claimant then sought treat ment with Dr. Steven Green, a chiropractor, on May 25, 2001. Dr. Green stated claimant was us ing 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 supe rficial nerves of the foot – peroneal and sural” as well as the beginnings of reflex sympathe tic 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. J ackson’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 clai mant and he remained his primary treating physician. He diagnosed a crush injury, right ti bial neuritis, right ta rsal 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 su bmitted 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 conclu sions. Claimant arrive d at the appointment limping and using his cane. Claimant performe d all physical tests, including hopping on each foot, straight gait, “heel and toe walk” and bala nce 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.-3- Dr. Stern found claimant to have a re solved soft tissue injury to his right foot and right ankle. He stated claimant was fully recovered from thos e injuries and that no further treatment was necessary. He also said “the cl aimant’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 inc line and on flat paveme nt 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 norma lly with no indication of pain or discomfort thus confirming the conclusions of his earlier report. A few hours after the September 18, 2003 surv eillance video was taken, claimant saw Dr. Ignacio. Dr. Ignacio’s offi ce 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 not ed mild swelling in the right foot and ankle with moderate and limited motion as well as tend erness 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 prescripti ons, referred him for a bone scan and a neurological evaluation of the chronic tibial neuritis. He continued hi m on his light duty work restrictions “to avoid prolonged standing and walking no more th an one (1) hour to eight (8) hours.” When claimant was questioned at the hear ing about the difference in his condition between the time of the surveilla nce video and his appointment w ith Dr. Ignacio, he stated he was having a “good day” and that he had soaked his foot the night be fore. He also stated he did not remember Dr. Stern asking him to perf orm any physical activity except kneeling.-4- The deputy commissioner found Dr. Stern’s report to be persuasive and terminated claimant’s ongoing benefits. Specifi cally, 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 clai mant apparently exaggerated his condition and continuing sympto ms, 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 th e 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. Ster n’s initial IME report. The full commission reversed th e deputy and held that: On July 9, 2003, Dr. Ignacio released the claimant to light duty work. He elaborated on th at restriction on September 18, 2003, when he instructed the claimant to “avoid prolonged standing and walking no more th an one (1) hour to eight (8) hours.” Although Dr. Ignacio was not privy to the surveillance videotape, we note that the ta pe does not show the claimant exceeding his restrictions. The vide otape evinced that the claimant is capable of short peri ods of standing and wa lking 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.-5- II. ANALYSIS Employer contends that the commission erred in disregarding the deputy commissioner’s “credibility finding” without suffici ent explanation in finding empl oyer failed to meet its burden of proof to terminate benefits. We disagree. 1 “In an application for review of an aw ard 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 n ecessarily conclusive, but is subject to the commission’s consideration and weighing.” Hunge rford 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 comm ission erred in awarding interest on the award and in overruling employer’s objection to th e admission of Dr. Green’s report. Employer failed to raise the issue of interest before th e commission or file a re quest 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 st ated that it did not consider the report in rendering its opinion.-6- Freight Carriers , 1 Va. App. at 439, 339 S.E.2d at 572 (c iting 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 ma y 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 fi nding of credibility is based, in whole or in part, upon the clai mant’s appearance and demeanor at the hearing, the commission may have difficulty reversing that finding without recalling the witne ss. 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 cl aimant. Rather, he stated that he was “unpersuaded” by claimant’s testimony and concl uded 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 explanat ion 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 f actors unrelated to this issue. It accorded greater weight-7- to the opinion of the treating phys ician, 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 show ing claimant walking well, did not show him exceeding the restrictions propounded by Dr. Ign acio, his treating physician. Thus, credible evidence supports the commission’s opinion. For the foregoing reasons, we affirm the decision of the commission. Affirmed.