Mohammed S. Mubaidin v. Holiday Inn Alexandria, et ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
MOHAMMED S. MUBAIDIN
MEMORANDUM OPINION*
v. Record No. 1963-99-4 PER CURIAM
DECEMBER 28, 1999
HOLIDAY INN ALEXANDRIA OLD TOWN
AND
ZURICH-AMERICAN INSURANCE GROUP
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Catherine Miraglia Lecky, on brief), for
appellant.
(Edward H. Grove, III; Brault, Palmer, Grove,
Zimmerman, White & Steinhilber, on brief),
for appellees.
Mohammed S. Mubaidin contends that the Workers'
Compensation Commission erred in (1) finding that he failed to
prove that he sustained disability from work causally related to
his compensable September 13, 1996 injury by accident within two
years from the date of that accident; (2) refusing to reopen the
record for additional evidence; and (3) refusing to award him
interest, penalties, attorney's fees, and costs and expenses
against his employer, Holiday Inn Alexandria Old Town, for
denying his claim. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I.
Mubaidin bore the burden of proving that he incurred
causally related disability within two years from the date of
his industrial accident. See Mayberry v. Alcoa Building Prods.,
18 Va. App. 18, 20, 441 S.E.2d 349, 350 (1994). Unless we can
say as a matter of law that Mubaidin's evidence sustained his
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). 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).
The medical records contain no documentation of any
disability from work for problems related to Mubaidin's
compensable left foot injury until Dr. Stephen J. Kominsky
recommended light work for Mubaidin on September 24, 1998. This
recommendation occurred more than two years after the date of
Mubaidin's compensable industrial accident. Before that date,
no physician limited Mubaidin's ability to work due to his
compensable left foot injury. In fact, Mubaidin did not seek
medical treatment between March 27, 1997 and September 23, 1998.
Because the medical evidence failed to show that Mubaidin
incurred any disability causally related to his compensable left
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foot injury until September 24, 1998, more than two years after
the date of his compensable industrial accident, we cannot find
as a matter of law that Mubaidin's evidence sustained his burden
of proof. In light of the lack of any medical evidence to
support his testimony, the commission was entitled to give
little probative weight to Mubaidin's testimony that he was
unable to work due to his foot injury.
II.
Mubaidin requested that the commission reopen the record to
consider additional evidence, namely, a "Progress Report"
generated by Vocational Assessment Services, Inc. and dated
November 23, 1998. In responding to Mubaidin's request, the
commission stated in its opinion that it had "reviewed the
additional evidence, and conclude that [the evidence] will not
affect our decision in this case. Thus, the issue of reopening
the record is moot."
Because the commission considered the additional evidence
and correctly found it had no bearing on its decision, the issue
presented by Mubaidin on appeal is moot and we need not consider
it.
III.
Mubaidin contends that the commission erred in failing to
award him attorney's fees and costs pursuant to Code
§ 65.2-713(A), interest pursuant to Code § 65.2-713(B), and
penalties pursuant to Code § 65.2-524.
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Because our disposition of this appeal affirms the
commission's decision denying compensation benefits to Mubaidin,
and it, therefore, necessarily establishes that employer had
reasonable grounds for defending against Mubaidin's claim, we
hold that the commission did not err.
For these reasons, we affirm the commission's decision.
Affirmed.
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