Faraway Farms, Inc. and Erie Insurance Ex.v Dinges

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bumgardner and Lemons
FARAWAY FARMS, INC. AND
ERIE INSURANCE EXCHANGE
MEMORANDUM OPINION*
v. 	Record No. 2163-99-3 	PER CURIAM
FEBRUARY 8, 2000
BRUCE DINGES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John C. Johnson; Tracy M. Benner; Frith,
Anderson & Peake, P.C., on brief), for
appellants.
(A. Thomas Lane, Jr., on brief), for
appellee.
Faraway Farms, Inc. and its insurer (hereinafter referred
to as "employer") contend that the Workers’ Compensation
Commission (commission) erred in finding that (1) Bruce Dinges
(claimant) proved he was totally disabled beginning August 13,
1998; and (2) its holding on the disability issue obviated the
need to address employer's argument that claimant failed to
market his residual work capacity. 	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. 	See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

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On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. 	See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In holding that claimant sustained his burden of proving
total disability for the relevant time period, the commission
found as follows:
In his response to the questions posed
to him by claimant's counsel in his letter
dated August 18, 1998, Dr. Spicuzza stated
his opinion that the claimant was totally
disabled from the time of his accident.
This opinion is substantiated by his note
dated August 13, 1998, stating that the
claimant was to be out of work for the
"indefinite future."
The employer relies heavily upon the
deposition testimony of Dr. Spicuzza in
arguing that claimant was not totally
disabled. 	Unquestionably, that testimony on
its face creates some equivocation on the
issue. 	However, when we review the entire
deposition transcript, we believe that the
statements made by Dr. Spicuzza are more in
the nature of hypothesizing rather than
definitive statements as to functional
ability. 	It would also appear from the
context of those statements that Dr.
Spicuzza was premising his hypothesis on the
assumption that the claimant would undergo
the surgery that was being considered.
Dr. Spicuzza's August 13, 1998 notes and his response to
claimant's counsel's questions contained in the August 18, 1998
letter constitute credible evidence to support the commission's

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finding that claimant carried his burden of proving total
disability beginning August 13, 1998. 	Moreover, as fact finder,
the commission was entitled to weigh any inconsistencies between
that evidence and Dr. Spicuzza's deposition testimony. 	The
commission did so and articulated legitimate reasons for
concluding that Dr. Spicuzza's deposition "statements [did not]
sufficiently outweigh the other evidence . . . to require a
finding that the claimant failed to carry his burden."1
For the reasons stated, we affirm the commission's
decision.
Affirmed.
1 Our affirmance of the commission's holding on the
disability issue renders it unnecessary for us to address the
marketing issue.