COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Duff
JON ROBIN DAVIS
MEMORANDUM OPINION*
v. Record No. 1674-00-3 PER CURIAM
NOVEMBER 14, 2000
SHADE EQUIPMENT COMPANY, INC. AND
FEDERATED MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(A. Thomas Lane, Jr., on brief), for
appellant.
(Robert M. McAdam; Jones & Glenn, P.L.C., on
brief), for appellees.
Jon Robin Davis contends that the Workers' Compensation
Commission erred in finding he failed to prove that he was
totally disabled from employment after December 1, 1999. 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.
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). So
viewed, the evidence proved Davis sustained a compensable left
knee injury on September 27, 1999, while working for employer.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Dr. Rick Stough reported that Davis had sustained no disability
from work as a result of the accident. A work status report
indicated, however, that Davis could "resume light-duties" on
September 27, 1999 through October 1, 1999, with limited use of
his legs. Although Davis was to have a follow-up visit on
October 1, 1999, the record contains no evidence he did so.
Davis testified that when he returned to work after the
September 27, 1999 accident, he presented his light-duty
restrictions to employer. His employer did not have any
light-duty work and told Davis to do the best he could. On
October 20, 1999, Davis quit his job. Davis testified that his
knee was hurting that day and that John Kerns, employer's branch
manager, made a comment that upset Davis and caused him to
believe that employer was not concerned about his knee injury.
Kerns testified that when Davis returned to work after the
accident, he told Davis to do what he felt he could do and that
others in the shop would assist him if necessary. Kerns also
told Davis to let him know of any problems. Davis performed all
of his job duties up until October 20, 1999 and never reported
to Kerns that he could not perform his job duties.
On November 10, 1999, Davis was examined by Dr. Stephen H.
Martenson, an orthopedic surgeon. Dr. Martenson noted that
Davis had been released to light duty and quit his job when his
employer required him to work on a ladder. Dr. Martenson
- 2 -
diagnosed "left knee strain with probable ACL tear; rule out
lateral meniscal tear, persistent loss of motion and swelling."
Dr. Martenson limited Davis to sedentary work "until the
diagnosis is clear and treatment is instituted appropriately"
and indicated that the sedentary work restriction would remain
in effect until December 8, 1999.
On December 1, 1999, Dr. Martenson reviewed Davis' MRI
results, which showed a posterior horn medial meniscal tear and
popliteal cyst formation. Dr. Martenson recommended that Davis
undergo arthroscopic partial medial meniscectomy and noted that
Davis "continues off work and an estimate would be three to six
weeks postop to return to any kind of laboring type work if a
sitting job is not available." Dr. Martenson recommended "no
work until reevaluated" and indicated that surgery had been
scheduled for December 14, 1999. Dr. Martenson noted that
Davis' surgery had been cancelled due to his workers'
compensation claim being contested.
Dr. Hetzel Hartley reviewed Davis' medical records upon
employer's request. Dr. Hartley reported that he agreed with
Dr. Martenson's November 10, 1999 note finding Davis capable of
sedentary work. Dr. Hartley defined sedentary work as work in a
seated position with no stair climbing, no prolonged standing or
walking for more than ten minutes each hour, and no walking on
uneven ground.
- 3 -
On appeal, Davis contends that Dr. Martenson removed him
from work as of December 1, 1999, and, therefore, he was
entitled to an award of temporary total disability benefits as
of that date. In addressing this issue, the commission found as
follows:
[W]e note that [Davis] returned to work and
was able to perform his regular work. The
employer provided [Davis] with the
opportunity to perform only the work he felt
capable of doing. [Davis] made no
complaints or indicated any difficulty in
performing his work. He unilaterally,
without any medical documentation, elected
to quit work on October 20, 1999. [Davis]
has made no effort to market his remaining
capacity since that time. While we note
that Dr. Martenson on December 1, 1999, took
[Davis] out of work, this was done in
anticipation of his surgery on December 14,
1999. There is no evidence [Davis']
condition worsened such that he was no
longer able to perform light duty work. It
appears that Dr. Martenson was under the
mistaken impression that the employer was
not willing to work within [Davis']
restrictions. [Davis] made no effort to
return to the employer to determine if there
was sedentary work available. [Davis] also
made no effort to secure work from other
employers. [Davis] described his
limitations as being unable to bend and
crawl like before the accident. However
[Davis] was able to perform his work and the
employer was willing to accommodate his
needs. [Davis] provided no testimony of
being totally disabled at this point. We
note [Davis'] testimony that he did not need
a cane or wheelchair. . . . In the absence
of any statement from Dr. Martenson
indicating that [Davis] was taken off work
for any reason other than the fact that he
was already not working and surgery was
anticipated, we cannot find that [Davis] has
borne his burden of proof.
- 4 -
Based upon Kerns' testimony, the commission, as fact
finder, could reasonably conclude that employer provided Davis
with work within his restrictions after his accident, that Davis
was capable of performing that work, and that Davis quit his
employment on October 20, 1999 for reasons unrelated to his
injury. Furthermore, based upon Dr. Martenson's records and
letters, the commission could find that Dr. Martenson excused
Davis from work after December 1, 1999, not because Davis was
totally disabled from all employment, but rather, because Davis
was already not working and was scheduled for surgery on
December 14, 1999. Nothing in Dr. Martenson's records
established that Davis' condition worsened to the point that he
could not perform light-duty or sedentary work as of December 1,
1999. Furthermore, nothing in Dr. Martenson's records proved
that he removed Davis from work as of December 1, 1999, because
Davis was no longer capable of performing light duty or
sedentary work. "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 Davis proved he was totally disabled as of December 1,
1999. See Tomko v. Michael's Plastering, Co., 210 Va. 697, 699,
173 S.E.2d 833, 835 (1970). Therefore, in the absence of any
- 5 -
evidence that Davis marketed his residual work capacity after
that date, we must affirm the commission's decision.
Affirmed.
- 6 -