COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
ADRIAN J. HARRIS
v. Record No. 0410-95-1 MEMORANDUM OPINION *
PER CURIAM
EASTERN STATE HOSPITAL/ AUGUST 1, 1995
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lois N. Manes, on brief), for appellant.
(James S. Gilmore, III, Attorney General; Gregory E.
Lucyk, Senior Assistant Attorney General; Peter R.
Messitt, Senior Assistant Attorney General, on brief),
for appellee.
Adrian J. Harris contends that the Workers' Compensation
Commission erred in finding that (1) she was on light duty status
from June 29, 1993 until May 20, 1994; (2) she did not adequately
market her residual capacity during this period of time; and (3)
she did not return to her medical care providers between
September 1993 and May 1994. 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 before the commission. 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.
I.
On June 27, 1993, the claimant, a registered nurse,
sustained an injury by accident arising out of and in the course
of her employment with Eastern State Hospital ("employer"). The
claimant worked for employer in a light duty capacity from June
29, 1993 through July 15, 1993, the date on which her employment
was terminated.
The commission found that the claimant was placed on a light
duty status from June 29, 1993 until May 20, 1994, when she was
released by Dr. W.F. Peach, Jr., a neurosurgeon, to return to her
regular employment without restrictions. This finding is
supported by the Williamsburg Urgent Care medical records. As of
July 16, 1993, she was restricted from lifting over twenty-five
pounds, from doing overhead work, and from violent patient
contact. These restrictions remained unchanged until the
claimant's release to full duty on May 20, 1994. 1
In light of these medical records, the commission was
entitled to reject the claimant's testimony that she believed she
was totally disabled from July 15, 1993 through May 20, 1994.
The claimant's testimony was not supported by the medical
2
records. The medical records of Drs. Henry C. Rowe, Peach, and
1
Dr. Rowe's September 17, 1993 statement that the claimant
needed total rest for her right upper extremity does not equate
to an opinion that she was totally disabled from working in any
gainful employment.
2
On appeal, this Court will not consider evidence that was
not properly before the commission. Thus, we do not consider Dr.
Rowe's November 17, 1994 report. This report was not before the
2
James F. Lesnick contain no indication that the claimant was
totally disabled from work between June 29, 1993 and May 20,
1994. Accordingly, the commission did not err in finding that
the claimant remained on a light duty status during this period
of time.
II.
In order to establish entitlement to benefits, a partially
disabled employee must prove that she has made a reasonable
effort to procure suitable work but has been unable to do so.
Great Atl. & Pac. Tea Co., 4 Va. App. 459, 464, 359 S.E.2d 98,
101 (1987). The claimant admitted that she did not seek work
between July 15, 1993 and May 20, 1994. She testified that her
doctors did not want her to work. However, this assertion is not
supported by the medical records. Thus, the commission did not
err in finding that the claimant made no effort to market her
residual capacity, and therefore, was not entitled to disability
compensation.
III.
The claimant asserts that her testimony included innocent
inaccuracies concerning the dates of medical treatment, and that
the commission relied on these inaccuracies in rendering its
decision. Therefore, she contends that the commission's decision
should be reversed and the case should be remanded for the
commission when it rendered its decision, and it was improperly
included in the appendix.
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commission to consider the accurate dates. We find that the
testimony was immaterial to the commission's decision. The
commission found that the claimant was not totally disabled.
This finding was based upon the medical records, not the
claimant's testimony.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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