Ronald Nathaniel Sawyer v. Work Clothes Warehouse ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis
RONALD NATHANIEL SAWYER
MEMORANDUM OPINION*
v. Record No. 0556-03-1 PER CURIAM
JULY 1, 2003
WORK CLOTHES WAREHOUSE, INC. AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Matthew H. Kraft; Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellant.
(Benjamin M. Mason; Mason, Mason, Walker &
Hedrick, P.C., on brief), for appellee Work
Clothes Warehouse, Inc.
(Jerry W. Kilgore, Attorney General; John J.
Beall, Jr., Senior Assistant Attorney
General; James Webb Jones, Assistant Attorney
General, on brief), for appellee Uninsured
Employer's Fund.
Ronald Nathaniel Sawyer (claimant) contends the Workers'
Compensation Commission erred in finding that he failed to prove
that he was entitled to an award of temporary total disability
(TTD) benefits as a result of his compensable July 25, 1997
injury by accident for the periods from (1) July 25, 1997
through August 5, 1997; 1 (2) August 19, 1997 through October 1,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Although claimant referred to the time period from January
25, 1997 through August 5, 1997 in his first question presented,
it is clear based upon the date of his compensable accident, the
1997; and (3) November 5, 2001 and continuing. Upon reviewing
the record and the parties' briefs, 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).
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).
In denying claimant's application for an award of TTD
benefits for the time periods alleged, the commission found as
follows:
For the first claimed period from July 25 to
August 6, 1997, we find no medical evidence
of total disability. Although the claimant
testified that he did not work from July 25
to August 5, 1997, there is no supporting
medical report.
Regarding the second claimed period
from August 19 to October 1, 1997, the
medical evidence shows that Dr. [Anthony T.]
Carter issued a slip on August 19, 1997,
excusing the claimant from work. Dr. Carter
then released the claimant to light duty on
September 9, 1997. The employer presented
evidence suggesting that he worked and
earned income during this claimed period,
content of the record, and the argument section of claimant's
brief, that the correct time period in question was from July
25, 1997 through August 5, 1997.
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and the claimant offered contradictory
testimony regarding his work efforts during
this period. We find that the evidence of
disability for this period is insufficient.
* * * * * * *
Finally, the claimant alleges temporary
total disability beginning November 5, 2001,
relying on Dr. [Frank W.] Gwathmey's letter
report and the VEC forms completed by
Dr. Carter and Dr. Gwathmey. We do not
accept the VEC forms as persuasive evidence
of disability in this case. Dr. Carter
signed the form on December 14, 2001,
indicating that the claimant was currently
unable to work. However, there are no
contemporaneous treatment records to support
his opinion. Dr. Gwathmey indicated on the
VEC form that the claimant was totally
unable to work from July 25, 1997, to the
present. This response clearly fails to
comport with the work history and treatment
records after the accident. The claimant
worked at various times, and in fact, was
released to work by Dr. Carter on several
occasions following the injury.
Dr. Gwathmey's letter is similarly
unpersuasive. To the extent that the
language in the letter can be interpreted to
excuse the claimant from work as a result of
the work injury, we find that the opinion is
based on an incomplete and inaccurate
history. We also find Dr. Gwathmey's
opinion undermined by his attempt to render
an opinion on the VEC form regarding the
claimant's work ability since 1997, despite
the fact that he first evaluated him in
2001.
July 25, 1997 Through August 5, 1997
Although claimant testified that he could not work during
this time period due to his right wrist fracture sustained on
July 25, 1997, there is no medical evidence in the record to
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establish that Dr. Carter, the treating physician, removed
claimant from work during that period of time. In fact,
Dr. Carter's medical records establish that he permitted
claimant to perform light-duty work as of August 6, 1997. There
is no indication in the medical records that claimant could not
have performed light-duty work from July 26, 1997 through
August 5, 1997.
Based upon the lack of any medical evidence supporting
total disability from work during the period from July 25, 1997
through August 5, 1997, we cannot find as a matter of law that
claimant's evidence sustained his burden of proving entitlement
to an award of TTD benefits for that period.
August 19, 1997 Through October 1, 1997
During the period from August 19, 1997 through October 1,
1997, Dr. Carter released claimant to light-duty work on
September 9, 1997. Claimant admitted he worked "about a week or
two" during that time period. However, employer's evidence
contradicted claimant's testimony. Employer's evidence
established that claimant worked on August 20, 1997; that he
earned $115.00 for the week ending August 23, 1997; that he
earned $360.00 for the week ending September 13, 1997; that he
earned $227.50 for the week ending September 20, 1997; that he
earned $335.00 for the week ending September 27, 1997; and that
he earned $55.00 for September 28 and 29, 1997. Moreover,
employer's former owner, James Carneal, testified that the only
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reason claimant did not earn income during the weeks ending
August 30, 1997 and September 6, 1997, was because he chose not
to work. Carneal testified that work waiting on customers was
available for claimant during that time and that it was offered
to him.
Based upon the contradictory evidence in the record
regarding claimant's work history during the period from
August 19, 1997 through October 1, 1997 and the commission's
role as fact finder in evaluating the credibility of the
witnesses, we cannot find as a matter of law that claimant
sustained his burden of proving he was entitled to an award of
TTD benefits from August 19, 1997 through October 1, 1997.
November 5, 2001 and Continuing
"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, 215 (1991). As fact finder, the commission weighed
the medical evidence and rejected the opinions of Dr. Gwathmey
and Carter with respect to claimant's claim of total disability
from November 5, 2001 and continuing. The commission noted that
there were no contemporaneous medical reports to support
Dr. Carter's December 14, 2001 VEC form, that there were
contradictions between the VEC form and letter completed by
Dr. Gwathmey and the claimant's known work history and treatment
records after the accident, and that although Dr. Gwathmey did
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not evaluate claimant for the first time until 2001, he rendered
an opinion as to claimant's work ability since 1997. In light
of these considerations, the commission, as fact finder, was
entitled to give little probative weight to the opinions of
Drs. Carter and Gwathmey. Accordingly, absent any persuasive
medical opinions supporting claimant's assertion of total
disability from November 5, 2001 and continuing, we cannot find
as a matter of law that claimant's evidence sustained his burden
of proof.
For these reasons, we affirm the commission's decision.
Affirmed.
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