COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

DEBORAH LYNN HINKLE 

 

v. Record No. 1947-96-4 MEMORANDUM OPINION*

 PER CURIAM 

ROCCO FARM FOODS/ROCCO JANUARY 7, 1997 

 ENTERPRISES, INC. AND 

 HOME INDEMNITY COMPANY 

 FROM THE VIRGINIA 

WORKERS' COMPENSATION COMMISSION 

 (Jerry O. Talton, on briefs), for appellant. 

 (Cathleen P. Welsh; Wharton, Aldhizer & 

Weaver, on brief), for appellees. 

 Deborah Lynn Hinkle appeals a decision of the Workers' 

Compensation Commission denying her an award of temporary total 

disability benefits after February 19, 1995. Hinkle contends 

that the commission erred in finding that she failed to prove 

that she was disabled after February 19, 1995 as a result of her 

compensable August 26, 1993 injury by accident. Finding no 

error, we affirm. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 So viewed, the evidence established that Hinkle sustained a 

compensable right arm injury on August 26, 1993. After the 

accident, Hinkle continued to work, but experienced intermittent 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

right hand and arm symptoms. On January 31, 1994, Hinkle sought 

treatment for these symptoms from Dr. Mark A. Rhodes, an 

orthopedic surgeon. On January 31, 1994, Dr. Rhodes noted by way 

of history Hinkle's work-related accident. Dr. Rhodes further 

noted subjective complaints and diagnosed traumatic lateral 

epicondylitis of the right elbow and extensor tendinitis 

secondary to acute strain of the right forearm and wrist. Dr. 

Rhodes treated Hinkle's injuries conservatively. Hinkle returned 

to Dr. Rhodes on March 14, 1994 and June 14, 1994. 

 On August 9, 1994, claimant sought emergency room treatment 

for an unrelated right thumb injury sustained at work on that 

date. After this accident, claimant was released to return to 

work on August 22, 1994. On August 24, 1994, Hinkle returned to 

Dr. Rhodes for treatment of the thumb injury. Dr. Rhodes did not 

note any complaints by Hinkle of right arm symptoms. Hinkle was 

also treated by Dr. Rhodes on September 16, 1994, and she 

telephoned his office on September 28 and October 5, 1994. On 

those occasions, Hinkle complained of right thumb pain, but did 

not mention right arm or hand symptoms. 

 On November 2, 1994, Dr. Rhodes noted a flare-up of Hinkle's 

right elbow epicondylitis, as well as ongoing right thumb 

symptoms. On November 10, 1994, Dr. Rhodes imposed restrictions 

on Hinkle's use of her right arm and performed surgery on her 

right elbow on December 8, 1994. Thereafter, Dr. Rhodes released 

Hinkle to return to full-duty on February 20, 1995. Hinkle 
 3 

sought treatment from Dr. Rhodes on March 2 and March 20, 1995. 

After March 20, 1995, Hinkle did not seek any medical treatment 

for right arm symptoms until August 9, 1995, when she returned to 

Dr. Rhodes upon her lawyer's request. On that date, Dr. Rhodes 

noted Hinkle's continuing symptoms and prescribed medication, but 

he did not mention disability. 

 On August 31, 1995, Dr. Rhodes answered "yes" to the 

following question posited by Hinkle's counsel: 

 Has Deborah Hinkle been unable to perform the 

full duties of her preinjury employment since 

on or before April 13, 1995 and continuing 

through the present due to the accident of 

August 26, 1993? 

 Based upon this record, the commission found that Hinkle 

failed to prove disability after February 19, 1995 causally 

related to her compensable right arm injury. In light of Dr. 

Rhodes' office notes through March 20, 1995, which indicated only 

subjective complaints and did not mention disability or 

restrictions, the commission gave little weight to claimant's 

testimony that she was laid off by employer in April 1995 due to 

disability caused by her right arm symptoms. In addition, the 

commission gave no weight to Dr. Rhodes' response to Hinkle's 

counsel's question, finding as follows: 

 This statement, however, must be read in 

light of the fact that Dr. Rhodes did not see 

the claimant between March 20 and August 9, 

1995. Moreover, his office notes for those 

two dates make no reference to disability, 

and this opinion apparently comes after the 

fact. There is no evidence, medical or 

otherwise, to the contrary. 
 4 

Unless we can say as a matter of law that Hinkle's evidence 

sustained her burden of proving causally-related disability after 

February 19, 1995, the commission's findings are binding and 

conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 

697, 699, 173 S.E.2d 833, 835 (1970). 

 Dr. Rhodes' release of Hinkle to full-duty without 

restrictions as of February 20, 1995 supports the commission's 

decision that she failed to prove disability after February 19, 

1995. In light of the lack of any medical treatment by Dr. 

Rhodes between March 20 and August 9, 1995 for Hinkle's right arm 

symptoms and the lack of any reference to disability in Dr. 

Rhodes' office notes for this same period of time, the commission 

was entitled to reject Dr. Rhodes' August 1995 opinion. 

"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, 

215 (1991). In addition, in light of the lack of medical 

evidence establishing causally-related disability, the 

commission, as fact finder, was free to give little weight to 

Hinkle's testimony. 

 While we note Dr. Rhodes' March 20, 1995 suggestion that 

Hinkle seek other employment, we also note that Dr. Rhodes did 

not treat Hinkle between March 20, 1995 and August 9, 1995, nor 

did he state prior to August 31, 1995 that Hinkle was disabled 

from performing her pre-injury employment. 
 5 

 Absent Dr. Rhodes' August 1995 opinion, there is no medical 

evidence to support a finding of causally-related disability 

after February 19, 1995. Accordingly, we cannot find as a matter 

of law that Hinkle's evidence sustained her burden of proof. 

 For these reasons, we affirm the commission's decision. 

 Affirmed. 
 6 

Benton, J., dissenting. 

 In finding that Hinkle failed to prove causally-related 

disability after February 19, 1995, the commission rejected Dr. 

Rhodes' August 31, 1995 undisputed opinion to the contrary. The 

commission's finding is not supported by the evidence. 

 On March 20, 1995, Hinkle returned to Dr. Rhodes with 

continued discomfort in her right elbow. Dr. Rhodes noted that 

Hinkle "had gone back to work on March 6, had pain and was 

attempting to try other positions which did not help." Dr. 

Rhodes diagnosed Hinkle as suffering from persistent recurrent 

right lateral epicondylitis, possible radial tunnel syndrome and 

tendinitis of the right elbow. He opined that the constant 

repetitive nature of Hinkle's employment prevented her from 

obtaining relief from her elbow pain. He suggested that Hinkle 

seek other employment and recommended that she contact vocational 

rehabilitation. 

 The commission failed to take into account Dr. Rhodes' March 

20, 1995 recommendation that Hinkle should seek alternative 

employment. Dr. Rhodes' opinion established that he believed 

Hinkle could not perform the full duties of her pre-injury 

employment as of March 20, 1995 as a result of her compensable 

right arm injury. On August 9, 1995, Dr. Rhodes noted that 

Hinkle continued to have discomfort in her right elbow and had 

been unable to perform her pre-injury job or an alternative job 

provided by employer. No medical evidence between March 20, 1995 
 7 

and August 9, 1995 supports the commission's implicit finding 

that Hinkle was able to perform the duties of her pre-injury 

employment. 

 Dr. Rhodes' medical records and opinions are undisputed. As 

the treating physician, Dr. Rhodes' opinions should have been 

given great weight by the commission. Pilot Freight Carriers, 

Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986). 

 Therefore, the record provides no basis upon which the 

commission could properly reject Dr. Rhodes' August 31, 1995 

opinion that Hinkle could not perform the full duties of her preinjury employment since on or before April 13, 1995 and 

continuing. 

 Because the undisputed medical evidence, as well as Hinkle's 

testimony, established that Hinkle was disabled from performing 

her pre-injury employment after April 13, 1995, I would reverse 

the commission's decision.