Casey H. Stamper v Williams Industries, Inc, et al

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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

CASEY H. STAMPER

Vv. Record No. 0228-96-4 MEMORANDUM OPINION
PER CURIAM
WILLIAMS INDUSTRIES, INC., T/A JULY 30, 1996

WILLIAMS ENTERPRISES,

FAIRFIELD BRIDGE COMPANY

AND NATIONAL UNION FIRE
INSURANCE COMPANY OF PITTSBURGH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Patrick M. Regan; Koonz, McKenney, Johnson &
Regan, on brief), for appellant.

(L. W. Hiner; Scott C. Ford; Midkiff & Hiner,
on brief), for appellee Williams Industries,
Inc., t/a Williams Enterprises.

(Lisa C. Healey; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees

Fairfield Bridge Company and National Union
Fire Insurance Company of Pittsburgh.

Casey H. Stamper ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in not awarding him
temporary total disability benefits after April 2, 1993. He
argues that the commission erred in finding that he (1) was
capable of performing light duty work after April 2, 1993, but
failed to market his residual capacity; and (2) failed to prove
that treatment for alleged psychological problems rendered to him

by Dr. Andrew A. Schiavone, Jr. was causally related to his

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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compensable October 8, 1992 injury by accident. 	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.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Claimant had the burden of proving by a preponderance of the
evidence that he remained totally disabled from performing any
occupation after April 2, 1993. 	Unless we can say as a matter of
law that claimant's evidence sustained his burden of proof, the
commission's findings are binding and conclusive upon us. 	Tomko
v. Michael's Plastering Co., 210 Va. 197, 199, 173 S.E.2d 833,
835 (1970).
In denying claimant's request for an award of temporary
total disability benefits after April 2, 1993, the commission
found as follows:
A review of Dr. [Herbert E.] Lane's
medical reports from March 1993 reveals no
findings of disability prior to April 22,
1994. 	Although the claimant was diagnosed
with a herniated disc at L5-S1 and continued
to voice subjective complaints of lower back
pain, [Dr. Lane] noted that these complaints
did not correlate with his objective findings
on examination.
The record, at best, reflects that the
claimant was able to perform light-duty work
after April 2, 1993, based on Dr. Lane's
medical reports and the FCE [functional
capacity evaluation] performed on May 25,
1993. 	Specifically, we note the Disability

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Pension Examination Report and the supporting
medical record from April 22, 1994, which,
when read together, leads to the conclusion
that [claimant] is unable to perform his
preinjury work, not that he is disabled from
performing all work. 	This conclusion is
supported by Dr. Lane's report of August 30,
1994, wherein he opined that the claimant was
disabled from his "regular occupation" rather
than "any occupation." 	Finally, Dr. [Myron
D.] Tremaine opined that [claimant] could
perform light-duty work with restrictions.
These findings are supported by the medical records of Drs.
Lane and Tremaine and the May 25, 1993 FCE report, which
established that claimant could perform sedentary work.
Accordingly, we cannot say as a matter of law that the claimant's
evidence proved that he remained totally disabled after April 2,
1993.
A claimant who is capable of performing light duty work has
the burden of proving that he made a reasonable effort to procure
suitable work, but was unable to market his remaining work
capacity. 	Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 100 (1987). 	"What constitutes a reasonable
marketing effort depends upon the facts and circumstances of each
case." 	The Greif Companies v. Sipe, 16 Va. App. 709, 715, 434
S.E.2d 314, 318 (1993).
Claimant admitted that he did not look for any type of work
after April 2, 1993. 	However, he contends that because his
physicians did not inform him of any specific work restrictions,
he had no duty to market his residual capacity. 	We disagree.
In Ridenhour v. City of Newport News, 12 Va. App. 415, 418,

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404 S.E.2d 89, 91 (1991), we held that it is not necessary for a
physician to have informed a partially disabled employee that he
has been released to light duty work before he has the burden of
marketing his residual work capacity. 	Rather, a reasonableness
test, which takes into account all the facts and surrounding
circumstances, should be used to review a claimant's marketing
efforts. 	Id.
The May 25, 1993 FCE report revealed that claimant could
perform sedentary work. 	The FCE report also detailed specific
work restrictions and contained a notation that "client was
briefed upon completion of the evaluation regarding the objective
outcome." 	During the FCE, claimant reported his goal was "[t]o
get back to work." 	He also stated, "I told my doctor to find me
a job where I can sit down whenever I want to; I can smoke or eat
whenever I want to; where I can take a nap when I need to, and
make over $25.00 an hour. 	Then I can work." 	Based upon the
content of the FCE report, the commission could reasonably infer
that claimant knew that his physicians believed he could perform
light duty work, and that he had knowledge of his specific work
restrictions. 	"Where reasonable inferences may be drawn from the
evidence in support of the commission's factual findings, they
will not be disturbed by this Court on appeal." 	Hawks v. Henrico
County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
Based upon this record, we cannot say as a matter of law
that the commission erred in denying claimant temporary total

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disability benefits after April 2, 1993 on the basis that he
failed to adequately market his residual capacity after that
date.
II.
The commission found that claimant failed to prove that Dr.
Schiavone's psychiatric treatment, beginning November 15, 1994,
was causally related to his compensable October 8, 1992 injury by
accident. 	In so ruling, the commission rejected Dr. Schiavone's
opinion that claimant's depression was secondary to chronic pain.
In its role as fact finder, the commission was entitled to
determine what weight, if any, was to be given to Dr. Schiavone's
opinion. 	"It lies within the commission's authority to determine
the facts and the weight of the evidence . . . ." 	Rose v. Red's
Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396 S.E.2d 392,
395 (1990). 	The commission noted that Dr. Schiavone did not
indicate any knowledge of claimant's domestic problems, including
a recent divorce and decreased child visitation. 	Where a medical
opinion is based upon an incomplete or inaccurate medical
history, the commission is entitled to conclude that the opinion
is of little probative value. 	See Clinchfield Coal Co. v.
Bowman, 229 Va. 249, 251-52, 329 S.E.2d 15, 16 (1985). 	Thus, we
cannot find as a matter of law that claimant's evidence sustained
his burden of proving that Dr. Schiavone's psychiatric treatment
was causally related to the compensable October 8, 1992 injury by
accident.

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

Affirmed.