COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Coleman
Argued at Richmond, Virginia
REGINALD LYON
MEMORANDUM OPINION * BY
v. Record No. 2311-11-2 JUDGE ROSSIE D. ALSTON, JR.
MAY 8, 2012
THE SALVATION ARMY AND
ZURICH AMERICAN INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Zenobia J. Peoples for appellant.
Rachel A. Riordan (Kalbaugh Pfund & Messersmith, on brief), for
appellees.
Reginald Lyon (claimant) appeals the Workers’ Compensation Commission’s denial of
temporary total disability benefits after October 18, 2010. Claimant alleges that the commission
erred in finding there was no evidence of his disability after that date. For the following reasons,
we agree and reverse and remand to the commission for further proceedings consistent with this
opinion.
BACKGROUND 1
The facts of this case are set forth in more detail in this Court’s opinion in Salvation
Army v. Lyon, Record No. 2299-11-2 (Va. Ct. App. May 8, 2012). For purposes of this appeal,
we note that Dr. Shannon Wolfe of Tuckahoe Orthopaedic Associates completed a form entitled
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
Attending Physician’s Report regarding claimant’s injury. In this report, Dr. Wolfe indicated
that he had treated claimant on June 14, 2010, July 12, 2010, August 13, 2010, August 23, 2010,
September 20, 2010, and October 18, 2010. The report stated that a “disability for work” existed
as a result of claimant’s April 20, 2010 work accident and began on August 13, 2010. Under a
box on the form labeled “Date able to return to light work,” Dr. Wolfe wrote, “to be determined
next visit.” Under a box labeled “Date able to return to regular work,” Dr. Wolfe wrote, “n/a.”
ANALYSIS
Claimant alleges that the commission erred in finding that he was not disabled after
October 18, 2010.
“[A] party seeking [workers’] compensation bears the burden of
proving his disability and the periods of that disability.” Marshall
Erdman & Assocs. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d
145, 149-50 (1997). Furthermore, “[t]here is no presumption in
the law that once a disability has been established, a claimant will
be assumed to remain disabled for an indefinite period of time.”
Id. at 679, 485 S.E.2d at 149. Whether [a claimant] suffered a
continuing disability is also a question of fact. Id.
Hoffman v. Carter, 50 Va. App. 199, 216, 648 S.E.2d 318, 327 (2007). Findings of fact by the
commission “will be upheld on appeal if supported by credible evidence.” James v. Capitol
Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Unless we can say as a
matter of law that claimant’s evidence sustained his burden of proof, the commission’s findings
regarding the period of disability are binding and conclusive upon us. See Tomko v. Michael’s
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Recognizing the significant evidentiary burden confronting claimant, we hold that, as a
matter of law, claimant’s evidence proved that his period of disability continued beyond October
18, 2010. Dr. Wolfe’s Attending Physician’s Report indicated that he had treated claimant on
October 18, 2010. The report also stated that claimant’s ability to return to light-duty work
would be determined at his next visit, implying that claimant was unable to return to light-duty
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work as of October 18, 2010, and continuing until at least his next visit. Moreover, under the
box labeled “Date able to return to regular work,” Dr. Wolfe wrote, “n/a,” the common
abbreviation for “not applicable,” see Merriam-Webster’s Collegiate Dictionary 823 (11th ed.
2005), thereby implying that claimant was unable to return to regular duty work as of at least his
last examination on October 18, 2010, and continuing until at least his next visit. This evidence
was sufficient to sustain claimant’s burden to prove that his period of disability continued
beyond October 18, 2010.
Contrary to the employer’s position, the instant case is factually and legally
distinguishable from Hoffman, 50 Va. App. 199, 648 S.E.2d 318, and Loehr, 24 Va. App. 670,
485 S.E.2d 145. The Hoffman Court reversed the commission’s award of benefits where the
commission based its determination on a work slip which “did not give any estimate as to how
long [the claimant’s] condition was expected to continue . . . did not indicate when, if ever, [the
claimant] would undergo his next medical examination . . . and [was issued] almost nine months
after [the claimant’s] last recorded examination.” 50 Va. App. at 217, 648 S.E.2d at 327.
Similarly, the Loehr Court affirmed the commission’s denial of benefits where the claimant
relied upon a medical record that “did not indicate the last occasion upon which [the claimant]
had been treated, how long the partial disability was expected to continue, or when, if ever, [the
claimant] would receive additional medical evaluation.” 24 Va. App. at 680, 485 S.E.2d at 150.
In contrast, here, the Attending Physician’s Report in the instant case indicated the last occasion
when claimant received treatment, October 18, 2010. In addition, although undated, the
Attending Physician’s Report was issued at most approximately two months after claimant’s last
treatment, since it was available at the December 15, 2010 hearing before the deputy
commissioner.
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Because the Attending Physician’s Report relied upon a recent examination of claimant
on October 18, 2010, and indicated that claimant was still unable to work as of that date and
continuing, we hold that claimant’s evidence proved, as a matter of law, that his period of
disability continued beyond October 18, 2010. Therefore, the commission erred in holding that
claimant was not entitled to temporary total disability benefits after that date. Accordingly, we
remand the case for further proceedings consistent with this opinion.
Reversed and remanded.
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