COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia
TYSON FOODS, INC.
MEMORANDUM OPINION * BY
v. Record No. 0510-96-3 JUDGE LARRY G. ELDER
OCTOBER 1, 1996
CAROLYN ELEANOR PAYNE-MARSHALL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Thomas G. Bell, Jr. (Timberlake, Smith,
Thomas & Moses, P.C., on brief), for
appellant.
George L. Townsend (Chandler, Franklin &
O'Bryan, on brief), for appellee.
Tyson Foods, Inc. (employer) appeals from the Workers'
Compensation Commission's (commission) award of temporary total
disability benefits to Carolyn Eleanor Payne-Marshall (claimant).
Employer contends that the commission erred in determining
(1) that claimant sustained an injury by accident despite the
deputy commissioner's ruling that claimant's testimony was not
credible; and (2) that claimant had no duty to market her
residual work capacity after her treating physician released her
to light duty work without setting forth her work restrictions.
Agreeing with employer's second argument, we reverse that part of
the commission's decision awarding claimant temporary total
disability benefits after January 9, 1995, the date her physician
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
released her to light duty work. We affirm the remainder of the
commission's decision.
I.
TESTIMONY TO ESTABLISH INJURY BY ACCIDENT
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). "It
is fundamental that a finding of fact made by the Commission is
conclusive and binding upon this court on review." Department of
Corrections v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986). The fact that contrary evidence exists in the record is
of no consequence if credible evidence supports the commission's
findings. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,
407 S.E.2d 32, 35 (1991).
Employer contends that the commission had no basis to
reverse the deputy commissioner's decision that claimant failed
to prove an identifiable injury by accident and that the
commission failed to articulate a reason for doing so. Employer
specifically contends "that once the issue of a witness'
credibility has been decided by the deputy commissioner hearing
the case ore tenus, this finding binds the full commission."
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 380, 363
S.E.2d 433, 436 (1989). We disagree with employer's application
of the law to the facts of this case.
In Pierce, we held that where the deputy commissioner's
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findings are based on a specific, recorded observation of a
witness' demeanor or appearance, the commission cannot
arbitrarily disregard those findings. Id. at 382, 363 S.E.2d at
437. In Pierce, unlike this case, the deputy commissioner
provided a detailed description of the claimant's demeanor and
appearance, stating in part:
[Claimant was] repeatedly evasive in his
answers to the extent that he gave the clear
appearance of intentionally trying to avoid
giving a direct response to an uncomplicated
question. [Claimant] . . . accomplished this
by his argumentative answers to such question
by defense counsel. This evasiveness which
was clearly apparent to this Hearing
Commissioner, coupled with the inconsistent
testimony of the [claimant] as contrasted
to his signed statement on the hospital pass
. . . raises a substantial question as to the
credibility of this [claimant].
Id. at 379-80, 363 S.E.2d at 436.
The commission has no duty to explain its decision favoring
the testimony of one witness over another "[a]bsent a specific
recorded observation regarding the behavior, demeanor or
appearance of [the witness]." Bullion Hollow Enters. v. Lane, 14
Va. App. 725, 729, 418 S.E.2d 904, 907 (1992). In this case, the
deputy commissioner did not make a specific, recorded observation
of the claimant's demeanor. The commission, therefore, was
entitled to make its own credibility determination based on the
record before it without articulating a reason for not following
the deputy commissioner's credibility findings. Kroger Co. v.
Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 881 (1992); Lane,
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14 Va. App. at 729, 418 S.E.2d at 907.
We agree with the commission's determination that the
conflicts between claimant's testimony and the recorded histories
are not substantial, "and in most instances, they are
satisfactorily explained." The probative weight that the
commission gave the conflicting evidence was "within its province
and not subject to our review." Birdsong Peanut Co. v. Cowling,
8 Va. App. 274, 279, 381 S.E.2d 24, 27 (1989).
The commission accurately summarized the substantial and
credible evidence in the record that supports claimant's version
of events, which factual account binds us on appeal. Briefly,
the evidence, viewed in the light most favorable to claimant,
shows that after midnight on October 21, 1994, claimant lifted a
tub full of boxes of chicken off of a conveyor belt, at which
time she was pulled down and injured her back and neck area.
Claimant immediately informed her sister and a supervisor of her
accident, before attempting to receive medical attention from a
company nurse. Claimant consulted a nurse later that day,
remained home in pain for the next three days, and then received
medical treatment at the hospital and from Dr. Mettetal. A
herniated disc was diagnosed and successfully treated surgically.
This evidence proved an injury by accident arising out of and in
the course of claimant's employment. See Code § 65.2-101.
We therefore hold that the commission did not err in
reversing the deputy commissioner's decision without providing a
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rationale for disregarding the deputy commissioner's general
credibility findings.
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II.
DUTY TO MARKET
The duty of a claimant to market his or her residual
capacity arises when the claimant is partially disabled.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 268, 380 S.E.2d
31, 32 (1989); Code § 65.2-510. Failure of a partially disabled
employee to satisfy the duty to make reasonable efforts to market
residual work capacity results in a temporary suspension of
benefits. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 100 (1987). "It is not required that a
workers' compensation claimant who suffers partial disability be
informed by her physician that she may undertake restricted work
in order for her to be obligated to make reasonable efforts to
market her residual skills." Ridenhour v. City of Newport News,
12 Va. App. 415, 416, 404 S.E.2d 89, 89 (1991). The claimant is
required to make reasonable efforts to market his or her
remaining work capacity when under all the facts and
circumstances, the claimant should reasonably and objectively
perceive that he or she can return to gainful employment. See
id. at 418, 404 S.E.2d at 90; Bateman, 4 Va. App. at 467, 359
S.E.2d at 102.
In this case, the uncontradicted evidence proved that Dr.
Gillespie informed claimant that beginning on January 9, 1995,
she was cleared to return to light duty employment. Dr.
Gillespie's report included the following excerpt:
I have recommended that claimant start
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looking for a light duty type job. She still
has some complaints of neck discomfort as
well as some axillary pain on the left side.
She has stated that she has no intentions of
going back to a manual labor type job, and
may be planning on returning to her
schooling. I have informed her that she
could be cleared for return to light duty
work at this point, and have recommended that
she go ahead and seek this type of
employment.
While nothing in the record reveals that Dr. Gillespie specified
the types of light duty employment that suited claimant's
physical limitations, claimant never asked for such
specifications. In light of these circumstances, we hold that
the commission erred in finding that claimant had no duty to
market her residual work capacity. Claimant failed to present
any evidence to show why she failed to make reasonable attempts
to locate suitable light duty employment. For example, claimant
may have presented evidence that she did not understand that she
had been released to light duty status or that she was confused
over her work restrictions or that she had problems not known to
Dr. Gillespie that precluded her return to work. In the absence
of any evidence of this nature, the commission lacked a basis to
determine that claimant's inaction was reasonable after Dr.
Gillespie in clear and unequivocal terms "informed her that she
[was] cleared for return to light duty work at this point."
The fact that a treating physician does not specify the
precise physical limitations on a claimant's release to light
duty employment does not mean that the claimant is excused from
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making further inquiry into the matter. As we stated in
Ridenhour, 12 Va. App. at 416, 404 S.E.2d at 89, a claimant who
suffers partial disability need not even be informed by her
physician "that she may undertake restricted work in order for
her to be obligated to make reasonable efforts to market her
residual skills." It follows that where a claimant's physician
does inform her of a release to light duty, the claimant is
required to take reasonable efforts toward marketing her residual
skills, even where the physician does not provide her with
specific instructions concerning appropriate light duty work.
Accordingly, we reverse that part of the commission's
decision awarding claimant temporary total disability benefits
after January 9, 1995. We affirm the other portions of the
commission's decision.
Affirmed in part and
reversed in part.
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Tyson Foods, Inc. v. Carolyn Eleanor Payne-Marshall
Combined Opinion