COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
SUE ANN LANE
MEMORANDUM OPINION*
v. Record No. 2697-01-3 PER CURIAM
APRIL 2, 2002
ALCOA BUILDING PRODUCTS AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Thomas W. Dixon, Jr.; Nelson, McPherson,
Summers & Santos, L.C., on brief), for
appellant.
(R. Ferrell Newman; Thompson, Smithers,
Newman, Wade & Childress, on brief), for
appellees.
Sue Ann Lane (claimant) contends the Workers' Compensation
Commission erred in finding that she failed to prove she was
totally disabled after April 5, 1999 as a result of her March
16, 1993 compensable back injury and, therefore, she was
required to market her residual work capacity, which she failed
to do. 1 Upon reviewing the record and the parties' briefs, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Claimant did not appeal the commission's findings that she
did not suffer a new injury by accident on April 5, 1999 and
that any current disability was the result of her 1993
compensable injury by accident. In addition, claimant did not
challenge the commission's ruling that she unjustifiably refused
selective employment on April 5, 1999.
conclude that this appeal is without merit. Accordingly, we
summarily affirm the commission's decision. Rule 5A:27.
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 her 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 granting employer's application and suspending
claimant's benefits as of April 5, 1999 based upon her failure
to cure her unjustified refusal of selective employment, the
commission found as follows:
[C]laimant argues that the evidence shows
she is entitled to temporary total
disability benefits after the [sic] April 5,
1999, because her disability rendered her
incapable of any work. The claimant relies
on her testimony and that of her husband
regarding her condition even before this
April 1999 incident. They testified that
she was very limited in performing her
household chores, had pain while sitting or
standing, and was in constant pain during
her one and one half years at Borg Warner
when she did the light duty position.
Significantly, the claimant testified
that her condition was essentially the same
before and after the April 1999 incident.
The claimant was released to light duty
work, and worked in that capacity after
April 5, 1999. The medical evidence
supports a finding that she was capable of
this light duty work.
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On April 5, 1999, the claimant was
suspended for poor job performance. After
April 5, 1999, the claimant sustained some
disability from work, as indicated by the
disability slips dated April 5, 1999 and
April 13, 1999, but the medical records do
not relate this disability to her 1993 work
accident. Once her period of disability
ended, which was after the suspension, the
claimant failed to report to her selective
employment, and she was terminated.
The medical evidence does not indicate
any disability from work after the April 13,
1999 work slip until Dr. [William G.]
Hatfield's May 5, 2000 letter to claimant's
counsel. Dr. Hatfield did not treat the
claimant between 1996 and May of 2000. In
1997, Dr. Hatfield's partner, Dr. [Antonio
E.] Valencia, returned the claimant to work.
Other medical evidence and the claimant
[sic] performance of light duty work
supported this release for one and one half
years. Moreover, as the Deputy Commissioner
noted, no corresponding medical records
support Dr. Hatfield's opinion that the
claimant could perform no work and that this
was related to her 1993 work injury. For
these reasons, the Deputy Commissioner's
finding that the claimant refused selective
employment is affirmed.
The claimant had a duty to market her
residual capacity and secure employment in
order to cure that refusal. The evidence
shows that despite her residual capacity,
the claimant has not cured her refusal. The
claimant candidly admitted that she has not
looked for work because she believes that
she is incapable of work. The medical
evidence contradicts her belief, and she had
a duty to cure her refusal of selective
employment.
The commission's findings are amply supported by claimant's
testimony that her pain remained the same both before and after
the April 5, 1999 incident, her ability to perform the
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light-duty job as a telephone operator for one and one-half
years, Dr. Valencia's 1997 light-duty work release, the 1997
functional capacities evaluation, and the medical records of
Drs. Valencia and E. Franklin Pence, Jr. As fact finder, the
commission was entitled to reject Dr. Hatfield's May 5, 2001 and
May 15, 2001 opinions, which were not supported by records of
any corresponding medical examination. "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).
Based upon this record, we cannot find as a matter of law
that claimant's evidence proved she was totally disabled after
April 5, 1999 as a result of her compensable 1993 injury by
accident. Accordingly, we affirm the commission's decision.
Affirmed.
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