COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
MONTCLAIR COUNTRY CLUB
AND
ZURICH INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2986-96-4 APRIL 29, 1997
LAURA JAHNKE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Joseph C. Veith, III; Montedonico, Hamilton &
Altman, on brief), for appellants.
(Michael E. Canode; Bond, Conte & Norman, on
brief), for appellee.
Montclair Country Club and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in awarding temporary
total disability benefits to Laura Jahnke (claimant) and in
finding that she did not bear the burden of proving she made a
good faith effort to market her residual work capacity after
August 18, 1995. 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.
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).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
On August 14, 1995, claimant's counsel posed written
questions to Dr. Abdorasool Janati, claimant's treating
neurosurgeon. Counsel asked Dr. Janati whether claimant was
presently disabled as a result of her March 21, 1991 compensable
injury by accident, and if so, whether that disability was total
or partial. Counsel also requested that Dr. Janati set forth
claimant's limitations if she was only partially disabled. On
August 18, 1995, Dr. Janati responded to these questions. Dr.
Janati stated that claimant had sustained injuries to her neck
and right upper extremity as a result of a work-related accident
on March 12, 1991. Dr. Janati opined that claimant continued to
suffer from symptoms of reflex sympathetic dystrophy of the right
upper extremity possibly associated with thoracic outlet syndrome
secondary to the work accident. Dr. Janati further opined that
claimant's condition would require surgery, and that she would
remain totally disabled pending surgical intervention.
On March 6, 1996, claimant's counsel sent a similar letter
to Dr. Janati. On April 3, 1996, Dr. Janati responded, stating
that claimant's condition remained unchanged, and that she
continued to be totally disabled.
Claimant testified that she did not believe she had ever
been released to return to work since the 1991 accident. She
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stated that she was incapable of working. Yet, beginning in
September 1995, claimant made efforts to market her residual
capacity. Claimant admitted that she was aware that on August
31, 1995, Dr. Janati had advised her not to lift more than
twenty-five pounds and to avoid pushing, pulling, and repeated
bending. 1
Based upon this record, the commission held that claimant
proved that she had been totally disabled from work since August
18, 1995. Dr. Janati's uncontradicted opinions and claimant's
testimony provide credible evidence to support the commission's
decision.
In its role as fact finder, the commission was entitled to
weigh the medical evidence, and to infer that Dr. Janati's August
31, 1995 cautionary instructions to claimant regarding her daily
activities did not constitute work restrictions or a release to
gainful employment. "Where reasonable inferences may be drawn
from the evidence in support of the commission's factual
findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d
695, 698 (1988). Dr. Janati's August 18, 1995 and April 3, 1996
responses to counsel's clear and unambiguous questions proved
that Dr. Janati did not believe that claimant was only partially
1
In his August 31, 1995 office notes, Dr. Janati wrote as
follows: "I will see the patient back in follow-up in one month.
In the meantime I have cautioned the patient against heavy
lifting (25 lbs. or more), pulling, pushing, and repeated
bending."
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disabled. Rather, he made it clear in both instances that
claimant remained totally disabled due to injuries causally
related to the March 21, 1991 compensable injury by accident. If
Dr. Janati believed that claimant was only partially disabled and
that she could work with specific restrictions, he had every
opportunity to provide such an opinion. Yet, he chose not to do
so.
Because credible evidence supports the commission's finding
that claimant remained totally disabled after August 18, 1995, we
find that the commission did not err in not requiring claimant to
prove that she made a good faith effort to market her residual
work capacity.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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