Opinion
Record No. 0198-94-4
Decided: August 30, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(Kathleen G. Walsh; Ashcraft Gerel, on brief), for appellant.
(Cathleen P. Welsh; Wharton, Aldhizer Weaver, on brief), for appellees.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Harry A. Comer contends that the Workers' Compensation Commission erred in denying his change in condition application on the basis that he failed to prove that he was totally disabled as of October 16, 1992. 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.
Comer injured his cervical spine in an industrial accident on March 22, 1991. Employer accepted the claim as compensable. The commission entered an award on September 10, 1992, providing temporary total disability benefits from December 2, 1991 to March 8, 1992, and temporary partial disability benefits from March 9, 1992 until March 15, 1992.
Comer was released by his treating physician, Dr. G. William Harper, III, to return to his regular pre-injury work on March 19, 1992. Thereafter, Comer continued medical treatment with Dr. Harper. When Dr. Harper examined Comer on June 17, July 23, August 5, and November 2, 1992, Comer complained of arm, neck, and shoulder pain. From October 16, 1992 through December 14, 1992, Dr. Harper's office notes do not indicate that Comer was disabled, or that Dr. Harper restricted Comer's ability to work. Comer continued treatment with Dr. Harper from January 1993 through March 1993, with the same complaints. On June 4, 1993, Comer was examined by Dr. Jack Perdue, III, a neurologist, on a referral from Dr. Harper. In his letter of June 4, 1993 to Dr. Harper, Dr. Perdue did not mention disability nor did he place any specific restrictions on Comer's ability to work.
Employer voluntarily paid compensation to Comer from December 10, 1992 through July 6, 1993. On January 14, 1993, Comer filed a change in condition application alleging total disability as of September 17, 1992. The commission found that Comer failed to prove that he was totally disabled from working after October 16, 1992. Rule 13 of the Rules of the Worker's Compensation Commission prevented any award of compensation to Comer prior to October 16, 1992.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The commission's findings of fact are conclusive when supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"General principles of workman's compensation law provide that '[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence.' " Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). Unless Comer proved as a matter of law that he was totally disabled after October 16, 1992, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Credible evidence proved that after Dr. Harper released Comer to return to his regular pre-injury work on March 19, 1992, Comer returned to his pre-injury work and performed that work until September 1992, when employer closed its plant. Although Comer visited doctors from September 1992 through June 30, 1993, none of the medical reports issued during that time indicated that he suffered a disability from the 1991 injury. The commission, as fact finder, was entitled to accord little, or no weight, to Dr. Harper's June 30, 1993 retrospective opinion regarding disability. There is no medical evidence in Dr. Harper's office notes prior to June 30, 1993 to substantiate disability.
Moreover, Comer actually performed his pre-injury work through September 1992. Since no medical evidence proves as a matter of law that Comer was totally disabled as of October 16, 1992, we cannot say that the commission erred in denying his change in condition application.
The commission also found that Comer failed to prove that his disability, if it existed, was causally related to his 1991 industrial injury. Comer did not address this issue in his opening brief. Thus, we will not address it.
Comer contends that under National Linen Serv. v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987), the commission failed to properly place the burden of proof on employer. Comer argues that the employer's voluntary payment of benefits for eight months without the submission of a memorandum of agreement makes his case analogous to McGuinn. We conclude that our holding in McGuinn is not applicable to the facts of this case. McGuinn was decided on the claimant's original application, not a change in condition application. Moreover, the burden of proof was shifted to the employer in McGuinn on the ground that, by voluntarily paying the claimant for thirteen months, the employer effectively acknowledged the compensability of his claim. Comer, however, unlike McGuinn, had an original award and had returned to his pre-injury work, prior to employer's voluntary payment of benefits. In addition, there is no evidence that Comer suffered any prejudice or was misled by employer's voluntary payments during the pendency of his application.
For the reasons stated, we hold that the commission did not err in placing the burden of proof on Comer. Accordingly, we affirm the commission's decision.
Affirmed.