Opinion
Record No. 1412-92-4
January 12, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Raul J. Romero, III; Burgess and Trapeni, on brief), for appellant.
(William L. Carey; Miles Stockbridge, on brief), for appellee.
Present: Judges Barrow, Moon and Bray
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
The sole issue on this appeal is whether the commission erred in finding that Gilda Mendizabal failed to prove disability related to her industrial accident of April 4, 1991 beyond November 30, 1991.
Factual findings of the commission will not be disturbed on appeal, if based upon credible evidence. Hercules v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). Unless we can say as a matter of law that Mendizabal's evidence was sufficient to sustain her burden of proof, then the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The evidence provided to the commission with regard to Mendizabal's disability was the Sick Leave Certificate of Dr. Julio C. Gonzales, neurologist, dated October 30, 1991. The certificate clearly states that Mendizabal is to be excused "from her duties from 10/30/91 until 11/30/91." There is no evidence in the record of any continuing disability beyond November 30, 1991.
The certificate constitutes credible evidence to support the commission's decision to terminate benefits as of November 30, 1991. There was no evidence brought forward by Mendizabal upon which the commission could have based an award beyond that date.
Mendizabal argues that if we affirm the decision of the commission, she loses compensation because her only remedy would be to file an Application for a Change in Condition in which she would only be entitled to claim benefits for the ninety-day period prior to filing the application. Since the commission's opinion was received by her on June 12, 1992, Mendizabal argues she would only be able to claim benefits as far back as March, 1992, even though there could be medical evidence that she was disabled from work prior to that time.
However, the same holds true for the employer. If the award was left open, the employer would have had to pay benefits until it filed an Application for a Change in Condition after the June 1992 opinion was released. Thus, the employer would be paying for seven months of compensation without evidence of disability during this period of time. The gap in eligibility for benefits could have been avoided if, within ninety days of November 30, 1991, Mendizabal had filed an application for change of condition if disability continued after that date.
For the reasons stated, we affirm the commission's decision.
Affirmed.