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Murphy v. Preston Trucking Co.2/7/1995
MEMORANDUM OPINION PER CURIAM
Carlton E. Murphy, Sr., contends that the Workers' Compensation Commission erred in denying his application because he failed to prove a change in condition sufficient to justify an award of temporary total disability benefits beginning April 23, 1993. 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. Rule 5A:27.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "General principles of workman's compensation law provide that 'in 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 evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (citation omitted). Unless Murphy's evidence proved as a matter of law that he was disabled beginning April 23, 1993, as a result of a change in the condition of his October 17, 1990 compensable left knee injury, 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).
In holding that Murphy did not sustain a change in condition, and that his back condition, rather than his left knee condition, triggered his incapacity beginning April 23, 1993, the commission found as follows:
Our review of the evidence leads us to conclude that the claimant's knee condition had not seriously deteriorated from the time the award for permanent partial benefits was entered and the filing of the instant application. Dr. O'Neill's progress reports had been uniformly consistent in opining that the claimant's serious knee condition would be ongoing and most likely require (when his age is appropriate) a total knee arthroplasty and medial compartmental arthroplasties. While Dr. O'Neill opined that the claimant's incapacity in April 1993 stemmed from the knee problem, there is no medical evidence that the knee condition was any worse than it had been over the previous months. In June 1993, the knee still came to full extension and while there was tenderness where there had always been tenderness, there was no swelling and the claimant was neurologically intact and straight leg raising was negative. He was, however, becoming increasingly symptomatic but nevertheless was able to continue in his regular employment until the back injury forced him in April to request light duty and when that was unavailable, to claim incapacity.
Murphy sustained a compensable left knee injury while working for employer as a truck driver on October 17, 1990. Murphy's treating physician, Dr. Donald O'Neill, released Murphy to return to his pre-injury job as of May 6, 1991, without restrictions. Murphy was able to work in his pre-injury job until March 17, 1993. On that date, he sustained a compensable back injury.
Murphy unequivocally testified that he stopped working in April 1993 because his back was acting up, and therefore, Dr. O'Neill advised him to go on light duty. Murphy stated that Dr. O'Neill's statements to him that his back was swollen and had some knots caused him to be out of work beginning in April 1993.
Dr. O'Neill's notes concerning his examinations of Murphy's left knee on March 5, 1993, March 22, 1993, March 26, 1993, April 26, 1993, May 7, 1993, and
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