Casey H. Stamper v. Williams Industries, Inc

• Court: Court of Appeals of Virginia
• Decided: July 30, 1996
• Docket: 0228964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

CASEY H. STAMPER

v. Record No. 0228-96-4 MEMORANDUM OPINION * PER CURIAM WILLIAMS INDUSTRIES, INC., T/A JULY 30, 1996 WILLIAMS ENTERPRISES, FAIRFIELD BRIDGE COMPANY AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Patrick M. Regan; Koonz, McKenney, Johnson & Regan, on brief), for appellant.

(L. W. Hiner; Scott C. Ford; Midkiff & Hiner, on brief), for appellee Williams Industries, Inc., t/a Williams Enterprises.

(Lisa C. Healey; Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellees Fairfield Bridge Company and National Union Fire Insurance Company of Pittsburgh.

Casey H. Stamper ("claimant") contends that the Workers'

Compensation Commission ("commission") erred in not awarding him

temporary total disability benefits after April 2, 1993. He

argues that the commission erred in finding that he (1) was

capable of performing light duty work after April 2, 1993, but

failed to market his residual capacity; and (2) failed to prove

that treatment for alleged psychological problems rendered to him

by Dr. Andrew A. Schiavone, Jr. was causally related to his

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. compensable October 8, 1992 injury by accident. 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.

I.

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).

Claimant had the burden of proving by a preponderance of the

evidence that he remained totally disabled from performing any

occupation after April 2, 1993. 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. Tomko

v. Michael's Plastering Co., 210 Va. 197, 199, 173 S.E.2d 833,

835 (1970).

In denying claimant's request for an award of temporary

total disability benefits after April 2, 1993, the commission

found as follows: A review of Dr. [Herbert E.] Lane's medical reports from March 1993 reveals no findings of disability prior to April 22, 1994. Although the claimant was diagnosed with a herniated disc at L5-S1 and continued to voice subjective complaints of lower back pain, [Dr. Lane] noted that these complaints did not correlate with his objective findings on examination. The record, at best, reflects that the claimant was able to perform light-duty work after April 2, 1993, based on Dr. Lane's medical reports and the FCE [functional capacity evaluation] performed on May 25, 1993. Specifically, we note the Disability

2 Pension Examination Report and the supporting medical record from April 22, 1994, which, when read together, leads to the conclusion that [claimant] is unable to perform his preinjury work, not that he is disabled from performing all work. This conclusion is supported by Dr. Lane's report of August 30, 1994, wherein he opined that the claimant was disabled from his "regular occupation" rather than "any occupation." Finally, Dr. [Myron D.] Tremaine opined that [claimant] could perform light-duty work with restrictions.

These findings are supported by the medical records of Drs.

Lane and Tremaine and the May 25, 1993 FCE report, which

established that claimant could perform sedentary work.

Accordingly, we cannot say as a matter of law that the claimant's

evidence proved that he remained totally disabled after April 2,

1993. A claimant who is capable of performing light duty work has

the burden of proving that he made a reasonable effort to procure

suitable work, but was unable to market his remaining work

capacity. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,

464, 359 S.E.2d 98, 100 (1987). "What constitutes a reasonable

marketing effort depends upon the facts and circumstances of each

case." The Greif Companies v. Sipe, 16 Va. App. 709, 715, 434

S.E.2d 314, 318 (1993).

Claimant admitted that he did not look for any type of work

after April 2, 1993. However, he contends that because his

physicians did not inform him of any specific work restrictions,

he had no duty to market his residual capacity. We disagree.

In Ridenhour v. City of Newport News, 12 Va. App. 415, 418,

3 404 S.E.2d 89, 91 (1991), we held that it is not necessary for a

physician to have informed a partially disabled employee that he

has been released to light duty work before he has the burden of

marketing his residual work capacity. Rather, a reasonableness

test, which takes into account all the facts and surrounding

circumstances, should be used to review a claimant's marketing

efforts. Id.

The May 25, 1993 FCE report revealed that claimant could

perform sedentary work. The FCE report also detailed specific

work restrictions and contained a notation that "client was

briefed upon completion of the evaluation regarding the objective

outcome." During the FCE, claimant reported his goal was "[t]o

get back to work." He also stated, "I told my doctor to find me

a job where I can sit down whenever I want to; I can smoke or eat

whenever I want to; where I can take a nap when I need to, and

make over $25.00 an hour. Then I can work." Based upon the

content of the FCE report, the commission could reasonably infer

that claimant knew that his physicians believed he could perform

light duty work, and that he had knowledge of his specific work

restrictions. "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).

Based upon this record, we cannot say as a matter of law

that the commission erred in denying claimant temporary total

4 disability benefits after April 2, 1993 on the basis that he

failed to adequately market his residual capacity after that

date.

II.

The commission found that claimant failed to prove that Dr.

Schiavone's psychiatric treatment, beginning November 15, 1994,

was causally related to his compensable October 8, 1992 injury by

accident. In so ruling, the commission rejected Dr. Schiavone's

opinion that claimant's depression was secondary to chronic pain.

In its role as fact finder, the commission was entitled to

determine what weight, if any, was to be given to Dr. Schiavone's

opinion. "It lies within the commission's authority to determine

the facts and the weight of the evidence . . . ." Rose v. Red's

Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392,

395 (1990). The commission noted that Dr. Schiavone did not

indicate any knowledge of claimant's domestic problems, including

a recent divorce and decreased child visitation. Where a medical

opinion is based upon an incomplete or inaccurate medical

history, the commission is entitled to conclude that the opinion

is of little probative value. See Clinchfield Coal Co. v.

Bowman, 229 Va. 249, 251-52, 329 S.E.2d 15, 16 (1985). Thus, we

cannot find as a matter of law that claimant's evidence sustained

his burden of proving that Dr. Schiavone's psychiatric treatment

was causally related to the compensable October 8, 1992 injury by

accident.

5 For the reasons stated, we affirm the commission's decision.

Affirmed.