Timothy Brandon v. Sunstates Maintenance Corp., et ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
TIMOTHY BRANDON
MEMORANDUM OPINION *
v. Record No. 1039-98-3 PER CURIAM
OCTOBER 6, 1998
SUNSTATES MAINTENANCE CORPORATION
AND
LIBERTY INSURANCE CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert L. Morrison, Jr.; Williams, Morrison,
Light & Moreau, on brief), for appellant.
(Gregory T. Casker; Daniel, Vaughan, Medley &
Smitherman, on brief), for appellees.
Timothy Brandon ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that he
failed to prove that (1) he was totally disabled from March 17,
1997 through June 11, 1997 and from June 21, 1997 and continuing;
and (2) he marketed his residual work capacity during those times
when he was not totally disabled. Claimant also argues that the
commission erred in ignoring his request that it reopen the
record to consider additional evidence from Dr. Lawrence Cohen.
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.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
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 March 1, 1997, claimant sustained a compensable low back
injury. On March 4, 1997, claimant came under the care of Dr.
Timothy H. Hooker. According to Dr. Hooker's March 13, 1997
Attending Physician's Report, claimant was unable to work
beginning March 4, 1997 due to his compensable injury. In that
same report, Dr. Hooker released claimant to return to his
regular work as of March 17, 1997. Dr. Hooker also referred
claimant to Dr. Cohen, an orthopedic surgeon.
Dr. Cohen examined claimant on March 14, 1997 and March 24,
1997, but made no comment with regard to claimant's work
capacity. On April 1, 1997, Dr. Cohen reported as follows:
We will continue conservative measures with
Physical Therapy. . . . We will take him out
of work as he says any type of activity
doesn't exacerbate his pain. I will see him
in approximately two to three weeks in
follow-up unless he has exacerbation of his
symptoms or signs.
Dr. Cohen's medical records between April 2, 1997 and June
11, 1997 contain no comments about claimant's work capacity. On
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June 12, 1997, Dr. Cohen performed surgery on claimant's back.
On June 20, 1997, Dr. Cohen noted that claimant was "doing
excellent at this time." Dr. Cohen noted that claimant "denie[d]
any significant back pain, leg pain, weakness, numbness,
paresthesia, or bowel or bladder dysfunction." Dr. Cohen
instructed claimant to start walking one mile per day and to
avoid bending, lifting, and twisting.
Based upon this record, the commission awarded claimant
temporary total disability benefits from March 4, 1997 through
March 16, 1997 and from June 12, 1997 through June 20, 1997.
However, the commission found that claimant failed to prove total
work incapacity from March 17, 1997 through June 12, 1997, and
from June 21, 1997 and continuing.
The commission's findings are supported by the record. Dr.
Hooker released claimant to return to his regular work as of
March 17, 1997. Dr. Cohen did not comment on claimant's ability
to work during March 1997. In its role as fact finder, the
commission was entitled to give little probative weight to Dr.
Cohen's April 1, 1997 report based upon its conclusion that "Dr.
Cohen intended to state the he would 'not take him out of work'
on that date, since he conditioned disability in this report on
subsequent exacerbations." "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, 214 (1991). The remainder of Dr.
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Cohen's medical records did not provide any evidence of
incapacity to work, other than between June 12, 1997 and June 20,
1997.
In light of the lack of persuasive medical evidence to
support a finding of total disability, the commission was
entitled to give little weight to claimant's testimony that Dr.
Cohen told him he could not work. Based upon this lack of
supporting medical evidence, we cannot find as a matter of law
that claimant's evidence sustained his burden of proving that he
was totally disabled between March 17, 1997 and June 11, 1997 and
beginning June 21, 1997 and continuing.
II.
Claimant contends that the commission erred in denying him
an award of temporary total disability benefits based upon its
finding that he failed to prove that he marketed his residual
work capacity, where, as here, the employer did not appear at the
hearing or present a defense. We find no merit in this argument.
In order to establish entitlement to benefits, a partially
disabled employee must prove that he has made a reasonable effort
to procure suitable work but has been unable to do so. See Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 101 (1987). Claimant presented no evidence that he made any
effort to market his residual work capacity at any time after his
compensable March 1, 1997 injury by accident. Accordingly, the
commission did not err in denying claimant benefits for all time
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periods for which he failed to establish total work incapacity.
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III.
As the party seeking to reopen the record on the basis of
after-discovered evidence, claimant bore the burden of proving
that "(1) the evidence was obtained after the hearing; (2) it
could not have been obtained prior to hearing through the
exercise of reasonable diligence; (3) it is not merely
cumulative, corroborative or collateral; and (4) it is material
and should produce an opposite result before the commission."
Williams v. People's Life Ins. Co., 19 Va. App. 530, 532, 452
S.E.2d 881, 883 (1995).
Claimant had ample opportunity to obtain Dr. Cohen's
opinions with respect to claimant's disability and residual work
capacity before the record closed on August 7, 1997. However, he
failed to do so. Because claimant did not satisfy the second
prong of the Williams test, the commission did not err in failing
to reopen the record for additional evidence from Dr. Cohen.
For these reasons, we affirm the commission's decision.
Affirmed.
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