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Barnes v. Fashions3/16/1993
OPINION BY JUDGE RICHARD S. BRAY
Gloria A. Barnes (claimant) appeals a decision of the Workers' Compensation Commission (commission) which terminated her benefits "for having prejudiced the rights of subrogation" of Wise Fashions (employer) and American Manufacturers Mutual Insurance Company (carrier). Claimant argues that the commission erred in concluding that injuries suffered in an automobile collision adversely affected her recovery from a previous compensable accident and that she failed to obtain her employer's requisite consent to settle the tort claim. Claimant also contends that the commission improperly declined to hear oral argument incident to its review of the deputy commissioner's decision. We disagree and affirm the decision of the commission.
On appellate review, we must construe the evidence in the light most favorable to the party prevailing below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). Factual findings by the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal. Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392, 395 (1990); Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 (1986). The existence of contrary evidence in the record is of no consequence if credible evidence supports the commission's findings. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
The record discloses that claimant sustained a compensable injury to her back and right leg in 1984 and thereafter received temporary total disability benefits. On April 3, 1987, she was involved in an automobile accident, which, though unrelated to her employment, aggravated the compensable injuries. Claimant subsequently settled with and released the tortfeasor without the approval or participation of employer, despite knowledge of employer's "interest" and its then pending petition to intervene in the civil litigation. When employer learned of the settlement, it filed an application with the commission to terminate benefits, alleging that claimant had wrongfully impaired its statutory right of subrogation against the third party. See Code ยงยง 65.2-309 and 65.2-812.
After consideration of the evidence, the deputy commissioner determined that "information . . . indicates that the employer was aware of settlement negotiations and allowed to play a role therein" and refused to terminate benefits. In a June 7, 1991 review opinion, the commission disagreed, finding that "the carrier did not play a role in the settlement negotiations but was only advised of the result after the fact," and "remanded" the case for "determination of the carrier's subrogation rights."
On remand, the only substantive medical evidence before the deputy commissioner was provided by Dr. Alfred P. Magness, claimaint's treating physician. Magness' reports included a recommendation in October, 1986, that claimant "look for a light duty type position," a "status" which he modified in August, 1987, because "her automobile accident had . . . intervened." However, in October, 1987, Magness opined that claimant was "incapable of returning to work before her automobile accident," and, in August, 1990, that she "was disabled permanently prior to her automobile accident" (emphasis added). Based upon this evidence, the deputy commissioner concluded
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