Opinion
Record No. 0264-94-1
Decided: August 16, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(William C. Walker; Donna White Kearney; Taylor Walker, on brief), for appellants.
(James J. Szablewicz; Mapp, Mapp Klein, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Michael C. Avino, Inc. contends that the Workers' Compensation Commission erred in awarding Boyd Joseph Austin temporary partial disability benefits commencing on January 5, 1993, and in finding that he adequately marketed his residual work capacity. 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.
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). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
On April 16, 1992, Austin sustained a compensable injury by accident to his head while working for Michael C. Avino, Inc. Following a hearing on Austin's application for temporary total disability, the commission awarded Austin medical benefits only and found that he did not prove disability for a period greater than seven days. Austin filed another application for hearing alleging temporary total disability commencing May 16, 1992. Pursuant to Rule 13(B) of the Rules of the Workers' Compensation Commission, his claim for disability benefits was limited, however, to ninety days prior to the filing of his application, i.e., January 5, 1993. The deputy commissioner denied compensation benefits to Austin on the ground that he was partially disabled and failed to market his residual work capacity. The full commission affirmed the deputy commissioner's finding of partial disability; however, it found that Austin adequately marketed his remaining work capacity and entered an award for temporary partial disability benefits beginning January 5, 1993 and continuing.
Credible evidence supports the commission's findings. The medical evidence proved that in March 1993, Dr. William E. O'Donnell, a licensed clinical psychologist, diagnosed Austin as having post-concussive syndrome. Dr. O'Donnell and Dr. Richard B. Kennan, who also treated Austin, opined that Austin was disabled from working in any capacity. Those opinions credibly prove Austin's partial disability.
The commission's finding that Austin sufficiently marketed his residual work capacity is also supported by credible evidence. Austin testified concerning his unsuccessful search for employment between May 1992 and January 1993. The evidence proved that since September 1992, Austin has worked in his wife's video store. He receives no pay for his work and would probably lose the job if his wife did not own the store. Dr. O'Donnell believed that Austin's limited work in the video store that Austin's wife owned was therapeutic and might improve his memory. This medical evidence is undisputed and supports the commission's finding that Austin's activity in the controlled and sheltered environment of his wife's video store "was essentially therapy" and that Austin does not have "the capacity to be employed other than at the work specifically approved by his physicians."
Based upon this record, we cannot say that the commission erred in finding that Austin was partially disabled and adequately marketed his residual work capacity. For that reason, we affirm the commission's decision.
Affirmed.