Mohammed S. Mubaidin v. Holiday Inn Alexandria, et

• Court: Court of Appeals of Virginia
• Decided: December 28, 1999
• Docket: 1963994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

MOHAMMED S. MUBAIDIN MEMORANDUM OPINION* v. Record No. 1963-99-4 PER CURIAM DECEMBER 28, 1999 HOLIDAY INN ALEXANDRIA OLD TOWN AND ZURICH-AMERICAN INSURANCE GROUP

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Catherine Miraglia Lecky, on brief), for appellant.

(Edward H. Grove, III; Brault, Palmer, Grove, Zimmerman, White & Steinhilber, on brief), for appellees.

Mohammed S. Mubaidin contends that the Workers'

Compensation Commission erred in (1) finding that he failed to

prove that he sustained disability from work causally related to

his compensable September 13, 1996 injury by accident within two

years from the date of that accident; (2) refusing to reopen the

record for additional evidence; and (3) refusing to award him

interest, penalties, attorney's fees, and costs and expenses

against his employer, Holiday Inn Alexandria Old Town, for

denying his claim. Upon reviewing the record and the briefs of

the parties, we conclude that this appeal is without merit.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Accordingly, we summarily affirm the commission's decision. See

Rule 5A:27.

I.

Mubaidin bore the burden of proving that he incurred

causally related disability within two years from the date of

his industrial accident. See Mayberry v. Alcoa Building Prods.,

18 Va. App. 18, 20, 441 S.E.2d 349, 350 (1994). Unless we can

say as a matter of law that Mubaidin'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 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).

The medical records contain no documentation of any

disability from work for problems related to Mubaidin's

compensable left foot injury until Dr. Stephen J. Kominsky

recommended light work for Mubaidin on September 24, 1998. This

recommendation occurred more than two years after the date of

Mubaidin's compensable industrial accident. Before that date,

no physician limited Mubaidin's ability to work due to his

compensable left foot injury. In fact, Mubaidin did not seek

medical treatment between March 27, 1997 and September 23, 1998.

Because the medical evidence failed to show that Mubaidin

incurred any disability causally related to his compensable left

- 2 - foot injury until September 24, 1998, more than two years after

the date of his compensable industrial accident, we cannot find

as a matter of law that Mubaidin's evidence sustained his burden

of proof. In light of the lack of any medical evidence to

support his testimony, the commission was entitled to give

little probative weight to Mubaidin's testimony that he was

unable to work due to his foot injury.

II.

Mubaidin requested that the commission reopen the record to

consider additional evidence, namely, a "Progress Report"

generated by Vocational Assessment Services, Inc. and dated

November 23, 1998. In responding to Mubaidin's request, the

commission stated in its opinion that it had "reviewed the

additional evidence, and conclude that [the evidence] will not

affect our decision in this case. Thus, the issue of reopening

the record is moot."

Because the commission considered the additional evidence

and correctly found it had no bearing on its decision, the issue

presented by Mubaidin on appeal is moot and we need not consider

it.

III.

Mubaidin contends that the commission erred in failing to

award him attorney's fees and costs pursuant to Code

§ 65.2-713(A), interest pursuant to Code § 65.2-713(B), and

penalties pursuant to Code § 65.2-524.

- 3 - Because our disposition of this appeal affirms the

commission's decision denying compensation benefits to Mubaidin,

and it, therefore, necessarily establishes that employer had

reasonable grounds for defending against Mubaidin's claim, we

hold that the commission did not err.

For these reasons, we affirm the commission's decision.

Affirmed.

- 4 -