Opinion
Record No. 1234-93-2
December 7, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Nathaniel S. Newman; R. Ferrell Newman; Thompson, Smithers, Newman Wade, on brief), for appellant.
(Robert L. Flax, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Tyson Foods, Inc. (employer) contends that the commission erred in finding that Gail Young (claimant) (1) met her burden of proving ongoing disability after May 1, 1992; and (2) made a reasonable effort to market her residual capacity after May 1, 1992. 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. As the parties are familiar with the facts of this case, we recite them only where necessary to explain our decision.
"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) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)).
The commission found that claimant continued to be partially disabled and awarded compensation beginning May 1, 1992, the date upon which she began to make a reasonable effort to market her residual work capacity. These findings are supported by credible evidence and will not be disturbed on appeal.
I.
As of November 6, 1991, Dr. Henry A. Yancey was of the opinion that claimant could not perform repetitive packing at the normal pace required by employer. He stated that she would not be able to work at all if she continued to have flare ups of swelling. On November 6, 1991, claimant attempted to perform her regular work, but could not do so without pain and swelling. In February 1992, Dr. Yancey stated that claimant could continue her "normal activities." At that time, claimant had not worked since November 6, 1991; thus Dr. Yancey's reference to "normal activities" is ambiguous. In March 1992, Dr. Yancey gave no opinion regarding disability. Moreover, claimant's subjective complaints of aching and swelling in her hand continued and were present at the time of the hearing. Claimant attempted to work in April 1992, but the swelling recurred.
Based upon this record, we cannot say as a matter of law that the commission erred in finding that claimant continued to be partially disabled after May 1, 1992. Dr. Yancey's records through March 1992 do not provide evidence that claimant was capable of carrying out all of the duties of her pre-injury employment. Moreover, the commission was entitled to discount Dr. Yancey's July 1992 opinion in that he did not examine claimant between November 4, 1991 and February 25, 1992, he did not examine her after March 20, 1992, and he did not give any basis for his opinion.
II.
Additionally, viewing the evidence in the light most favorable to claimant, we cannot say that the commission erred in finding that she made a reasonable effort to market her work capacity beginning on May 1, 1992. She unsuccessfully attempted to work in April 1992. Since that time, she registered with the Virginia Employment Commission and made at least three contacts per week with potential employers.
For the reasons stated, we affirm the commission's decision.
Affirmed.