COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
DONIS RAY COOK
MEMORANDUM OPINION*
v. Record No. 0677-02-3 PER CURIAM
AUGUST 6, 2002
PACE COAL COMPANY AND
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(D. Edward Wise, Jr.; Arrington Schelin &
Herrell, P.C., on brief), for appellant.
(S. Vernon Priddy III; Patsy L. Mundy; Sands
Anderson Marks & Miller, on brief), for
appellees.
Donis Ray Cook (claimant) contends the Workers'
Compensation Commission erred in finding that he failed to prove
that his post-September 2, 1999 disability was causally related
to his compensable April 15, 1999 injury by accident or its
residual effects. 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
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).
In denying claimant an award of continuing temporary total
disability benefits after September 2, 1999, the commission
found as follows:
Dr. [Robert W.] Walker clearly
opined . . . that the claimant has been
"completely" or "totally" disabled since May
22, 1999, "as well as since that time." It
is not clear, however, whether Dr. Walker
attributes the claimant's continuing
disability to his rheumatoid arthritis, the
septic arthritis in his knee resulting from
the hand laceration (either independently or
as an aggravation of the rheumatoid
arthritis), or a combination of both.
Dr. Walker also states, "it is difficult to
ascertain at what point his continued
disability is because of this [subsequent
left knee infection] as opposed to his
continued illness with a seronegative
rheumatoid arthritis." Our reading of
Dr. Walker's written report and testimony
leads us to conclude that the claimant's
injury and subsequent left knee infection
resulted in total disability "for a number
of weeks," but that Dr. Walker is genuinely
unsure about what if any role these events
play in the claimant's continuing
disability. As noted by the Deputy
Commissioner, it was not clear from
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Dr. Walker's testimony why he considered the
claimant totally disabled, or whether he
considered the claimant totally disabled
from all work or simply from his pre-injury
work. Under these circumstances, we cannot
conclude from Dr. Walker's opinion and
testimony that he considered the claimant
continuously and totally disabled from all
work as of April 23, 1999, as a result of
the April 15, 1999, injury by accident or
its residual effects. . . . We agree with
the employer that Dr. Walker's opinion
supports a finding that the claimant's
injury and subsequent left knee infection
resulted in his total disability "for a
number of weeks," and that this finding is
consistent with the opinion of Dr. [J.
Thomas] Hulvey that the claimant was
temporarily and totally disabled until
September 2, 1999.
The commission's findings are amply supported by the
medical records and testimony of Dr. Walker and by Dr. Hulvey's
medical reports. Claimant's argument that the commission
misapplied the "two causes rule" is without merit. For the rule
to apply, the evidence must have established that there were two
causes for claimant's continuing disability, one related to the
employment and one unrelated. See Duffy v. Commonwealth/Dep't
of State Police, 22 Va. App. 245, 251, 468 S.E.2d 702, 705
(1996). Neither Dr. Walker's nor Dr. Hulvey's medical reports,
testimony, or opinions established that a work-related injury or
condition attributed, in whole or in part, to claimant's
post-September 2, 1999 disability. Accordingly, we cannot find
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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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