Southwest VA Tire, Inc., et al. v Mark A. Bryant

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
SOUTHWEST VIRGINIA TIRE, INC. AND
AMERICAN MANUFACTURERS MUTUAL
INSURANCE COMPANY
OPINION BY
v. 	Record No. 1492-99-3 	JUDGE SAM W. COLEMAN III
FEBRUARY 29, 2000
MARK ANTHONY BRYANT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ramesh Murthy (Penn, Stuart & Eskridge, on
brief), for appellants.
Gerald F. Sharp (Gerald F. Sharp, P.C., on
brief), for appellee.
Southwest Virginia Tire and its insurer, American
Manufacturers Mutual Insurance Company, appeal the Workers'
Compensation Commission's decision awarding Mark Anthony Bryant
temporary total disability benefits from December 31, 1997 to
the present. 	Southwest argues that the commission erred by
holding that Bryant's claim was not barred by the two-year
statute of limitation under Code § 65.2-708(A) or barred by the
six-month limitation period under Code § 65.2-510(C). 	For the
following reasons, we affirm the commission's decision.
BACKGROUND
On June 2, 1995, Bryant suffered a compensable back injury
arising out of and in the course of his employment with

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Southwest. 	Bryant was awarded temporary total disability
benefits from June 12, 1995 through February 5, 1996, when he
returned to light-duty employment. 	After returning to work,
Bryant was awarded temporary partial disability. 	On April 24,
1996, Southwest filed an Application for Hearing, alleging that
Bryant had unjustifiably refused light-duty employment. 	After a
hearing, the commission found that Bryant had unjustifiably
refused light-duty work suitable to his capacity and suspended
his benefits pursuant to Code § 65.2-510 as of April 21, 1996,
the last day for which compensation had been paid. 	Bryant did
not appeal that decision.
On March 31, 1998, Bryant filed a change-in-condition
application requesting the resumption of temporary total
disability benefits beginning December 30, 1997. 	The deputy
commissioner found that Bryant had become totally disabled and
awarded benefits effective December 31, 1997. 	On review, the
commission affirmed the decision finding that Bryant's claim was
not barred by either Code § 65.2-708(A) or Code § 65.2-510(C),
as Southwest claimed.
ANALYSIS
A. 	Code § 65.2-510(C)
First, we consider whether Bryant's claim is barred by Code
§ 65.2-510(C), which provides, in pertinent part, that:
[a] cure of unjustified refusal pursuant to
subsection A may not be established if the

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unjustified refusal lasts more than six
months from the last day for which
compensation was paid before suspension
pursuant to this section; however, the
six-month period may be extended by the
number of days a claimant is totally
disabled if the disability commenced during
such six-month period.
Southwest argues that because Bryant failed to "cure" his
unjustified refusal of selective employment within six months
from the date he refused selective employment, he is barred from
claiming benefits for temporary total disability. 	Southwest
notes that an employee may "cure" his refusal of selective
employment by accepting the refused light-duty employment or by
marketing his residual capacity. 	See generally Herbert Bros.,
Inc. v. Jenkins, 14 Va. App. 715, 419 S.E.2d 283 (1992);
Thompson v. Hampton Inst., 3 Va. App. 668, 353 S.E.2d 316
(1987). 	Southwest further argues, purportedly relying upon the
holdings in two commission decisions,1 that an employee may also
"cure" his refusal of selective employment by demonstrating that
he is temporarily totally disabled. 	Thus, Southwest reasons
that because Bryant's attempt to "cure" his unjustified refusal
of selective employment is based upon his claim that he is
temporarily totally disabled, a claim that arose after the
1 Willis v. Philip Morris, Inc., VWC File No. 129-60-38
(July 26, 1994); Hughes v. Jones Masonry Co., 60 OIC 216 (1991).

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six-month limitation period of Code § 65.2-510(C) expired, he is
barred from making a claim for temporary total disability.
Bryant concedes that he did not cure the refusal of
selective employment within the requisite period by accepting
the offered selective employment or marketing his residual
capacity; however, he asserts that Code § 65.2-510(C) is
inapplicable to a change-in-condition application for temporary
total disability. 	We agree. 	Moreover, Southwest misconstrues
the commission's holdings in Willis and in Hughes. 	The
commission did not hold, as Southwest asserts, "that temporary
total disability constitutes a 'cure' of a refusal to perform
selective duty." 	To the contrary, the commission held in
Willis, "[i]t is well established that an unjustified refusal of
selective employment does not operate as a bar to compensation
for total work incapacity." 	In Hughes the commission again
reiterated that refusal of selective employment does not bar a
claim for total disability based on a change in condition.
Neither case held that temporary total disability "cures" a
refusal to perform selective employment.
Southwest misapprehends the plain language of Code
§ 65.2-510(C), which deals with suspension of benefits for a
partially disabled employee who unjustifiably refuses an offer
of employment within the employee's residual work capacity.
Code § 65.2-510 does not have any bearing upon a

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change-in-condition application for an employee who becomes
totally disabled as a result of the industrial injury, except to
the extent that it may later affect whether a subsequent claim
for partial disability is barred. 	We express no opinion on that
issue which is not before us. 	Because Bryant is not attempting
to cure his previous unjustified refusal of selective
employment, but rather, is claiming that he is temporarily
totally disabled, we find that Code § 65.2-510(C) is
inapplicable. 	Therefore, the commission did not err in finding
that Bryant was not barred by Code § 65.2-510(C) from raising
his claim.
B. 	Code § 65.2-708(A)
We next consider whether Bryant's claim for temporary total
disability is barred by the twenty-four month provision of Code
§ 65.2-708(A). 	Code § 65.2-708(A) requires that a
change-in-condition application be filed within twenty-four
months from the last day for which compensation was paid. 	A
change in an employee's physical condition that is compensable
under Code § 65.2-708 includes, among certain other changes, any
"'progression, deterioration, or aggravation'" of a previously
compensated injury. 	Leonard v. Arnold, 218 Va. 210, 213-14, 237
S.E.2d 97, 99 (1977) (quoting 3 Arthur Larson, The Law of
Workmen's Compensation § 81.31 (1976) (construing former Code
§ 65.1-99)). 	However, "a new and separate accidental injury"

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may not be compensated as a change in condition of a previous
injury. 	Id. at 214, 237 S.E.2d at 99. 	Thus, when an employee
seeks compensation under Code § 65.2-708, the employee must
prove that the change in condition is "causally connected with
the injury originally compensated." 	King's Market v. Porter,
227 Va. 478, 483, 317 S.E.2d 146, 148 (1984).
We have said that the language of Code § 65.2-708(A)
providing that "[n]o such review shall be made after twenty-four
months from the last day for which compensation was paid," is
construed to mean that "the change in condition must occur
within twenty-four months from the date compensation was last
due or paid." 	Code § 65.2-708(A); Armstrong Furniture v. Elder,
4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987) (construing
former Code § 65.1-99). 	We have also held that a claimant is
not required by Code § 65.2-708(A) to produce the evidence prior
to the expiration of the twenty-four month limitation, so long
as the application alleged that a change in condition existed
within the time of the filing. 	See Johnson v. Smith, 16 Va.
App. 167, 169-70, 428 S.E.2d 508, 510 (1993); Hungerford
Mechanical Corp. v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d
213, 215 (1991).
Bryant last received compensation on April 21, 1996. 	He
filed his change-in-condition application March 31, 1998.
Southwest does not dispute that Bryant filed his application

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within twenty-four months from the date that he last received
compensation. 	Southwest argues, however, that Bryant did not
prove that he was totally disabled within the twenty-four month
period because the documentation filed with the commission in
support of his claim was a doctor's report dated June 16, 1998.
Southwest reasons that because the doctor's report supporting
the claim was not available to Bryant until after the time
limitation had run, the filing of the claim was anticipatory and
Bryant was not able to establish his claim within the statutory
time limitation. 	The notion that the date of a medical report
or even a doctor's examination must be within this statutory
period in order to prove the date of onset of disability is not
reasonable. 	A doctor may conduct an examination and, together
with a medical history, render an opinion as to the cause and
date of onset of a disability. 	The June 16, 1998 office note by
Dr. Yogesh Chand, Bryant's treating physician, stated that
Bryant had been totally disabled since October, 1997, when Dr.
Chand reported that a recent MRI revealed a small new recurrent
herniated disc.
On appeal, we view the evidence in the light most favorable
to Bryant, the prevailing party. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 	We
accept the commission's factual findings when they are supported
by credible evidence. 	See James v. Capitol Steel Constr. Co.,

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8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 	"The
Commission's factual findings are 'conclusive and binding,' Code
§ [65.2-706], and a question raised by 'conflicting expert
medical opinions' is 'one of fact'" binding upon this Court on
appeal. 	Eccon Constr. Co. v. Lucas, 221 Va. 786, 790, 273
S.E.2d 797, 799 (1981) (citations omitted).
Following its review of the medical evidence, the
commission gave the greatest weight to Dr. Chand's June 1998
report. 	The commission noted that although medical reports from
Dr. G.V. Reddy, Bryant's initial treating physician, and Dr.
Stephen Schroering, a physician who examined Bryant at his
counsel's request, indicate that Bryant was not totally disabled
and was capable of light-duty work, neither doctor examined
Bryant after July 1997. 	See also Penley v. Island Creek Coal
Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989) ("Questions
raised by conflicting medical opinions must be decided by the
commission."). 	The commission found that Dr. Chand's medical
opinion was supported by a recent positive MRI and Dr. Chand's
contemporaneous office notes, which indicated that Bryant
continued to complain of back pain and that he was "getting
worse in his symptomology."
The commission did not err in finding that Bryant's claims
were not barred by Code §§ 65.2-510(C) or 65.2-708(A) or by
finding on the evidence before it that Bryant was temporarily

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totally disabled. 	We, therefore, affirm the commission's
decision reinstating Bryant's temporary total disability
benefits.
Affirmed.