Harman Mining Corporation, et al. v Thacker

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
HARMAN MINING CORPORATION AND
SECURITY INSURANCE COMPANY
OF HARTFORD
MEMORANDUM OPINION*
v. 	Record No. 0267-99-4 	PER CURIAM
JUNE 8, 1999
JOHN THACKER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Thornton L. Newlon; Blandford & Newlon, on
briefs), for appellants.
(Daniel Sachs, on brief), for appellee.
Harman Mining Corporation and its insurer (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission (1) incorrectly applied the test set forth by this
Court in Clinchfield Coal Co. v. Parrot, 22 Va. App. 443, 470
S.E.2d 597 (1996), with respect to whether an injured employee is
able to return to pre-injury employment; and (2) erred in finding
that employer failed to prove that John Thacker was able to return
to his pre-injury work as of February 9, 1998. 	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. 	See Rule 5A:27.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"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)). 	Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission’s findings
are binding and conclusive upon us. 	See Tomko v. Michael’s
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying employer's change-in-condition application and
in finding that employer failed to prove that Thacker was able
to fully perform his pre-injury work, the commission found as
follows:
[T]he "clean" weight of the miner cable is
4.8 pounds per foot, resulting in an
approximate total weight of between 48 and 72
pounds. 	Although a miner helper was assigned
to assist [Thacker] in his pre-injury work,
including lifting the miner cable, it is
uncontroverted that sometimes a miner helper
was absent or not available. 	Whether such
occurrence was frequent or infrequent is of
no consequence, because [Thacker] was
restricted from even occasionally lifting in
excess of 70 pounds.

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. . . [C]laimant's pre-injury job
required occasional lifting of the miner
cable without assistance. 	In the July 17,
1998, Opinion, the deputy commissioner stated
that lifting 15 feet of miner cable was
within [Thacker's] job description, based on
a per-foot weight of 4.5 pounds. 	As noted
above, however, the evidence establishes that
the cable weighed 4.8 pounds per foot.
Moreover, this weight does not take into
account any debris on the cable, the weight
of the water line, and the effect of the
equipment carried by [Thacker] while
performing his duties. 	As for Dr. [Clinton]
Sutherland's release of [Thacker], it is
based on the job description provided by the
employer, which does not account for
occasional lifting of the miner cable without
assistance.
(Footnote omitted.)
The commission's findings that Dr. Sutherland's release was
based upon an incomplete and/or inaccurate job description and
that the manner in which claimant actually performed his job
fell outside of Dr. Sutherland's restrictions are supported by
Thacker's testimony. 	As fact finder, the commission was
entitled to accept Thacker's testimony regarding his job duties
and to reject any contrary testimony.
Thus, we cannot say as a matter of law that employer's
evidence sustained its burden of proving by a preponderance of
the evidence that Thacker was capable of performing all of the
duties of his pre-injury employment as of February 9, 1998.
Contrary to employer's argument, the commission's holding
in this case was not inconsistent with our holding in Parrott.
In Parrott, we reaffirmed the principle that "'[i]n determining

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whether an injured employee can return to his or her pre-injury
employment duties the Commission does not look at how the duties
could ideally be performed, but rather, how the duties were
actually performed.'" 	22 Va. App. at 447, 470 S.E.2d at 598-99
(citation omitted). 	Here, Thacker's testimony, which the
commission was entitled to accept, established "how the duties
were actually performed," or in other words, the "normal and
customary manner in which the pre-injury work was performed."
Id. at 447, 470 S.E.2d at 599.
For the reasons stated, we affirm the commission's
decision.
Affirmed.