COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
BRADFORD S. DAME
v. Record No. 3129-96-1 MEMORANDUM OPINION *
PER CURIAM
LOCKWOOD CARPETS, INC. MAY 27, 1997
AND
STATE FARM INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John H. Klein; Matthew H. Kraft; Rutter &
Montagna, on brief), for appellant.
(Ruth Nathanson; Midkiff & Hiner, on brief),
for appellees.
Bradford S. Dame (claimant) contends that the Workers'
Compensation Commission (commission) erred in not awarding him
compensation benefits after July 3, 1995 based upon its finding
that he unjustifiably refused medical treatment. 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. Rule 5A:27.
"General principles of workman's compensation law provide
that '[i]n 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 September 12, 1992, claimant sustained an injury by
accident arising out of and in the course of his employment to
his back and knee. Pursuant to awards of the commission,
claimant received temporary total and temporary partial
disability benefits for various periods of time following his
injury. On March 3, 1995, claimant filed an application seeking
an award of temporary total disability benefits commencing
December 28, 1994.
The medical evidence showed that on January 17, 1995, after
working briefly as a painter's assistant, claimant returned to
Dr. Douglas Griffin, complaining of increased back pain and an
inability to work. Dr. Griffin diagnosed myofascial low back
pain and prescribed physical therapy and medication. When next
examined by Dr. Griffin on May 23, 1995, claimant's condition
remained unchanged. Dr. Griffin then referred claimant to the
Medical College of Virginia Pain Management Center (MCV) for
evaluation and treatment, and recommended that claimant not work
until seen at MCV. Claimant testified that Dr. Griffin told him
he would make an appointment at MCV for claimant. Neither Dr.
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Griffin nor employer ever made an appointment for claimant at
MCV.
On June 12, 1995, Dr. Griffin wrote to claimant's attorney,
reiterating that he had "literally transferred" claimant's care
to MCV and that claimant should not return to work until seen at
MCV. At no time after May 23, 1995 did claimant contact MCV for
an appointment nor did he ever return to Dr. Griffin for
treatment of his back condition, although he saw Dr. Griffin in
April 1996 for an unrelated shoulder problem.
Based upon this record, the commission found that "[w]hile
the claimant did not affirmatively refuse any medical treatment
provided by the employer, he also made no effort to secure an
appointment at MCV, even after his attorney was advised by Dr.
Griffin on June 12, 1995, that he had transferred the claimant's
care to MCV." Recognizing that it might have taken several weeks
to secure an appointment at MCV, the commission awarded temporary
total disability benefits to claimant for a period of three weeks
after June 12, 1995, terminating benefits as of July 3, 1995.
The commission held that claimant failed to prove continuing
disability after that date.
Based upon claimant's failure to seek medical treatment for
his compensable injuries from May 23, 1995, when Dr. Griffin
referred him to MCV, to the June 27, 1996 hearing date, the
commission was entitled to conclude that claimant failed to prove
continuing disability after July 3, 1995. As the commission
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noted, it is not required to "presume a continuing disability."
Based upon the lack of evidence of a continuing disability after
July 3, 1995, we cannot find as a matter of law that claimant
proved he was entitled to an award of temporary total disability
benefits after that date.
Accordingly, we affirm the commission's decision.
Affirmed.
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