Elva Pauline Frye v Leggett, et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
ELVA PAULINE FRYE
v. 	Record No. 3008-95-4 	MEMORANDUM OPINION* BY
JUDGE RICHARD S. BRAY
LEGGETT, ET AL. 	MAY 7, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael W. Heaviside (Ashcraft & Gerel, on
brief), for appellant.
Edward H. Grove, III (Brault, Palmer, Grove,
Zimmerman, White & Mims, on brief), for
appellees.
Elva Pauline Frye (claimant) appeals the decision of the
Workers' Compensation Commission (commission) denying her
application for reinstatement of temporary total disability
benefits. 	Contrary to the commission's finding, she contends
that sufficient evidence supported her claim of a change in
condition. 	We disagree and affirm the commission.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal. 	Guided by well established principles, we construe the
evidence in the light most favorable to the party prevailing
below, Leggett (employer) in this instance. 	Crisp v. Brown's
Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916,
916 (1986).
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Claimant, a beauty consultant, sustained a work-related
injury on August 8, 1991, and was awarded temporary total
disability benefits.1 Her treating physician, Dr. Thomas W.
Daugherty, released claimant to pre-injury employment beginning
October 22, 1991, with instructions to avoid "heavy lifting."
After several months of "light duty" work with employer, claimant
resigned and accepted a position with J. C. Penney. 	She remained
with J. C. Penney until her resignation on December 24, 1992, and
has since worked for only one day. 	On June 13, 1994, claimant
filed an application alleging a change in condition attributable
to the original injury and seeking temporary total disability
benefits, commencing March 21, 1994.
Dr. Daugherty advised claimant's counsel on March 21, 1994,
that, "[claimant] continues to be disabled as a direct result of
her industrial accident on August 8, 1991," adding that her
"ongoing symptom complex [is] all totally, completely and fully
related to her August 8, 1991, event." 	However, in November,
1994, Dr. Daugherty noted that claimant's "neck, shoulder and
back are all giving her lots of problems," but he was then unable
to "specifically diagnose why she was having this much trouble."
The following month, he reported that claimant's MRI diagnostic
tests "are within normal limits . . . . 	Believe she has
1Claimant received benefits for the periods August 30, 1991,
to October 20, 1991, and September 4, 1992, to September 26,
1992. 	She was denied benefits beginning December 24, 1992, and
continuing.

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basically recovered from the symptoms she was experiencing
secondary to the post traumatic condition of 8/13/91."
Nevertheless, Dr. Daughtery opined in June, 1995, that claimant
"continues to be disabled from her previous level of gainful
employment," and "[r]eexamination of the patient . . . confirms
. . . the opinions stated in [the March 21, 1994] letter."
An employee seeking reinstatement of disability benefits
resulting from a change in condition must prove by a
preponderance of the evidence that (1) there has been a change in
employee's capacity to work, and 2) if so, that the change is due
to a condition causally connected with the injury originally
compensated. 	King's Market v. Porter, 227 Va. 478, 483, 317
S.E.2d 146, 148 (1984); see Great Atl. & Pac. Tea Co. v. Bateman,
4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). 	"Unless we can
say as a matter of law that the evidence submitted by [claimant]
was sufficient to sustain [her] burden [of proof], . . . the
commission's finding . . . is binding and conclusive upon us."
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
The commission characterized Dr. Daugherty's medical
evidence as "contradictory," providing "no assessment of total
disability" or "the extent of . . . disability" and concluded
that claimant had failed to establish a "change in her capacity
to work . . . causally connected to the original injury." 	This
finding enjoys substantial support in the record and will not be

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disturbed on appeal.
Accordingly, we affirm the decision of the commission.2
Affirmed.
2We decline to address claimant's efforts to market her
residual work capacity.