Audubon Tree Experts v. Kurt F. Reighard

• Court: Court of Appeals of Virginia
• Decided: July 1, 1997
• Docket: 0214974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

AUDUBON TREE EXPERTS, INC. AND INSURANCE COMPANY OF NORTH AMERICA MEMORANDUM OPINION * v. Record No. 0214-97-4 PER CURIAM JULY 1, 1997 KURT FREDERICK REIGHARD

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (Douglas A. Seymour; Law Office of Harold MacLaughlin, on brief), for appellants.

(Lawrence J. Pascal; Ashcraft & Gerel, on brief), for appellee.

Audubon Tree Experts, Inc. and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that (1) Kurt F.

Reighard proved he was entitled to an award of temporary total

disability benefits from November 22, 1995 through April 29,

1996; and (2) Reighard adequately marketed his residual work

capacity during that time period. 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.

Factual findings made by the commission will be upheld on

appeal if supported by credible evidence. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 * Pursuant to Code § 17-116.010 this opinion is not designated for publication. (1989). 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).

So viewed, the evidence proved that Reighard sustained a

compensable injury to his left knee on June 24, 1993. He

received temporary total disability benefits for various periods

of time following his injury. It was undisputed that Reighard

found selective employment on his own with Tyson's Service

Corporation. The commission then entered an award for partial

incapacity beginning March 1, 1995, which it modified on January

22, 1996. Reighard testified that after a period of time, he was

asked to perform additional duties for Tyson's which exceeded his

restrictions. On November 22, 1995, he quit work because he was

having pain in his knee and could hardly walk. Reighard returned to his treating physician, Dr. William A.

Hazel, Jr., complaining of increased knee pain. Dr. Hazel

prescribed physical therapy three times per week and suggested

the possibility of Reighard undergoing arthroscopic surgery. On

April 29, 1996, Dr. Hazel performed arthroscopic surgery on

Reighard's knee. On June 11, 1996, Dr. Hazel released Reighard

to light-duty work.

On February 20, 1996, Reighard filed a change in condition

application seeking temporary total disability benefits beginning

November 22, 1995. In response to a letter from Reighard's

- 2 - counsel, Dr. Hazel opined that Reighard was unable to work on

December 15, 1995, and that, to his knowledge, Reighard had not

worked since. Dr. Hazel noted that he had not discussed with

Reighard any "alternative arrangements which could have been

workable." Dr. Hazel opined that Reighard had "clearly" been

incapacitated since the April 29, 1996 surgery.

I.

As the commission correctly noted, it is well settled that

an employee who obtains selective employment on his own may

terminate that employment without explanation. Thereafter,

benefits for temporary total disability must resume unless it is

shown that the employee has fully recovered and is able to resume

regular employment. See American Steel Placing Co., Inc. v.

Adams, 230 Va. 189, 192, 335 S.E.2d 270, 272 (1985); Big D

Quality Homebuilders v. Hamilton, 228 Va. 378, 380, 322 S.E.2d

839, 841 (1984).

Credible evidence proved that after Reighard procured

selective employment on his own, he was forced to quit because

its duties exceeded his restrictions. No evidence proved that

Reighard had fully recovered from his knee injury and that he

could resume his regular employment. Therefore, the commission

did not err in awarding temporary total disability benefits to

Reighard beginning November 22, 1995.

II.

A claimant's effort to market his residual capacity must be

- 3 - evaluated in the context of "reasonableness." See Ridenhour v.

City of Newport News, 12 Va. App. 415, 418, 404 S.E.2d 89, 90

(1991). "This would necessarily include consideration of the

claimant's perception of his condition, his abilities, and his

employability, and of the basis for that perception." Id. at

418, 404 S.E.2d at 90-91.

The evidence showed that Dr. Hazel did not discuss with

Reighard the possibility of returning to light-duty employment

between December 15, 1995 and Reighard's surgery in April 1996.

Rather, Dr. Hazel prescribed frequent physical therapy and

discussed the possibility of future surgery. Reighard testified

that he was involved in physical therapy three days per week and

that he understood that he was not able to work at that time.

Based upon Dr. Hazel's medical reports and Reighard's testimony,

the commission could infer that it was reasonable for Reighard to

perceive that Dr. Hazel had not released him to any type of

light-duty employment between December 15, 1995 and April 29,

1996, the date of his surgery. "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).

Because credible evidence supports the commission's

findings, those findings are binding and conclusive upon us.

Accordingly, we affirm the commission's decision.

- 4 - Affirmed.

- 5 -