COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
NOEL THOMAS WAKELYN, JR.
MEMORANDUM OPINION*
v. Record No. 1332-02-2 PER CURIAM
DECEMBER 31, 2002
SPAIN COMMERCIAL INTERIORS, INC. AND
STATE FARM FIRE & CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Noel Thomas Wakelyn, Jr., pro se, on brief).
(Kathryn Spruill Lingle; Theisen & Lingle,
P.C., on brief), for appellees.
Noel Thomas Wakelyn, Jr. (claimant) contends the Workers'
Compensation Commission erred in finding that he failed to prove
that (1) he sustained a compensable change-in-condition
entitling him to an award of temporary partial disability
("TPD") from May 12, 1999 through August 4, 1999; an award of
temporary total disability ("TTD") benefits for August 5, 1999
and for August 18, 1999 through September 19, 1999; and an award
of TPD benefits for August 6 through August 17, 1999 and from
September 20, 1999 and continuing; (2) he reasonably marketed
his residual work capacity after September 1999, when he began
attending college; and (3) his back condition was a compensable
consequence of his compensable September 26, 1997 left heel
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
injury. Upon reviewing the record and the parties' briefs, we
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
I. Change-in-Condition
"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) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d
570, 572 (1986)). Unless we can say as a matter of law that
claimant's evidence sustained his burden of proof, the
commission's findings are binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
On May 12, 1999, Dr. David Durica issued the following work
restrictions for claimant: no lifting over twenty-five pounds
for more than two hours per day, no lifting over fifteen pounds
for more than eight hours per day, no walking or standing for
more than two hours per day without a break or for more than
four hours per day without intermittent breaks, no kneeling or
squatting for more than two hours per day, no climbing more than
one flight of stairs at a time; no climbing ladders, and no
twisting or bending more than six times per hour. These
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restrictions remained in effect, except for the period from
August 18 through September 15, 1999, when claimant was supposed
to have been off all work, according to Dr. Durica.
Claimant testified that since May 12, 1999, he had worked
for his stepfather at M & M Enterprises installing skirting on
house trailers and small decks for house trailers. He admitted
that he worked for M & M Enterprises in September 1999. He also
worked for Island Installations, doing work similar to his work
for Stanley Fixtures, a company that he worked for in July and
August 1999. Claimant also worked for Southwest Recreational,
where he installed "astroturf" on athletic fields at the College
of William and Mary. He claimed that all the work he performed
fell within his restrictions issued by Dr. Durica. He also
claimed that his supervisor at Stanley Fixtures, Vernon Lee, was
aware of and accommodated his 1997 work injury.
Lee testified that claimant was "just like everybody else,
he was a journeyman carpenter." Lee saw claimant working on
six-foot ladders and scaffolding. Lee testified that claimant
worked on a Baker's scaffold that rises to a height of
approximately six feet. In order to work on a Baker's scaffold,
an individual must step on round rungs and climb. Lee stated
that with respect to lifting requirements while claimant worked
at Stanley Fixtures "[a] lot of this stuff is pretty
heavy. . . . There is some light stuff, but most of it is
pretty heavy and its takes two or three people to pick up some
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of it to put it on a dolly or something like that to roll it to
where you are going to install it." Lee stated that some things
"probably weighed two or 300 pounds." Contrary to claimant's
testimony, Lee denied providing claimant any special
accommodations. Lee also denied that he knew of claimant's 1997
work injury. Lee was not aware that anyone helped claimant on
the job.
Dr. Tushar Gajjar, who began treating claimant in February
2000, reported in a March 22, 2000 office note that claimant had
a scar on his nose, reportedly sustained when he was fixing
gutters at his mother's residence. In a May 11, 2000 office
note, Dr. Gajjar reported that claimant did not appear to have
an obvious alteration of his gait while walking into or out of
the examination room. Dr. Gajjar noted that at that time
claimant reported walking distances up to one and one-half
miles. In his April 15, 2001 report, Dr. Gajjar noted that
claimant had undergone diagnostic procedures, which resulted in
non-physiologic responses. Dr. Gajjar noted that claimant has
given "indications on past visits that he is essentially
unlimited in activity levels and there has been no worsening of
atrophy in the lower extremity."
Based upon this evidence, the commission concluded as
follows:
[T]he evidence demonstrates that the
claimant's treating physician had imposed
significant restrictions on the claimant's
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ability to work beginning May 12, 1999.
However, the evidence also clearly shows
that the claimant ignored those work
restrictions and performed physically
demanding work of a nature akin to his
pre-injury employment. There is no evidence
that the claimant attempted to find or
perform work within the bounds of the
restrictions placed by his physician.
We find that the claimant's conduct in
performing such work is superior evidence of
his actual physical capacity than the
medical reports that imposed the work
restrictions. Since the claimant's actual
conduct during the period from May 12, 1999,
through August 31, 1999, demonstrated that
he was able to perform work substantially
similar to his pre-injury employment, the
Act precludes us from awarding compensation
for temporary partial incapacity during that
period.
In light of Dr. Gajjar's medical records, evidence of
claimant's actual performance of work that exceeded his
restrictions during the claimed time periods, and Lee's
testimony, we cannot find as a matter of law that claimant's
evidence proved he sustained a change-in-condition as of May 12,
1999, entitling him to an award of TTD or TPD benefits.
II. Marketing
Because we affirm the commission's ruling that claimant
failed to meet his burden of proving a change-in-condition, we
need not address the marketing issue.
III. Back Condition
In ruling that claimant failed to prove that his back
condition was a compensable consequence of his compensable
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September 26, 1997 left heel injury, the commission found as
follows:
Dr. . . . Durica noted on September 8, 1999,
that the claimant's back pain, which had
begun in April 1999 after a trial use of a
cast on his foot, was probably the result of
"gait problems due to his protection of the
left leg." The claimant did not treat with
Dr. Durica after September 1999, and began
pain management treatment with Dr. . . .
Gajjar in February 2000. Dr. Gajjar noted
on April 18, 2001, that the claimant had not
complained of back pain to him during his
treatment. Thus, we agree with the deputy
commissioner that the claimant did not prove
that his back problems were the result of
the 1997 injury, especially considering that
the claimant's treating physician during
2000 did not observe any back problems or
note any back problems.
"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). As fact finder, the commission was
entitled to give little weight to Dr. Durica's opinion in light
of the evidence that he had not treated claimant since September
1999 and that claimant's back pain did not begin until more than
one and one-half years after the compensable foot injury.
The commission relied upon the response of Dr. Gajjar to
employer's counsel's April 11, 2001 questionnaire, in which he
indicated that he could not relate claimant's back condition to
his compensable 1997 foot injury. Even if we were to assume, as
claimant argues, that the commission erroneously relied upon
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Dr. Gajjar's opinion because it was based upon his incorrect
assumption that claimant did not complain of back pain during
his treatment, the commission's finding is binding and
conclusive upon us. Absent Dr. Durica's opinion, which the
commission, as fact finder, was entitled to reject, the record
contains no credible evidence of a causal connection between
claimant's back condition and his September 26, 1997 compensable
foot injury. Accordingly, we cannot find as a matter of law
that claimant's evidence sustained his burden of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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Noel Thomas Wakelyn, Jr v. Spain Commerical
Combined Opinion