Harvey Scott v. Peninsula Airport Commission ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
HARVEY SCOTT
MEMORANDUM OPINION*
v. Record No. 1224-99-2 PER CURIAM
SEPTEMBER 14, 1999
PENINSULA AIRPORT COMMISSION AND
EMPLOYERS INSURANCE OF WAUSAU
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Harvey Scott, pro se, on brief).
(Deborah S. O'Toole; Cowen & Owen, P.C.,
on brief), for appellees.
Harvey Scott (claimant) contends that the Workers'
Compensation Commission (commission) erred in denying him
benefits after January 19, 1998 on the grounds that he was
released to light-duty work and that he failed to market his
remaining work capacity after that date. 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.
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).
Unless we can say as a matter of law that claimant’s evidence
sustained his burden of proof, the commission’s findings are
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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 claimant's application for benefits, the
commission found as follows:
The medical record contains a note dated May
30, 1995, in which Dr. [Charles H.] Bonner
opined that [claimant] was not suitable for
any work. There are no later work
disability slips in the record. Dr. Bonner
wrote on January 20, 1998, that the
claimant's restrictions were sitting three
hours, walking 200 feet, standing one-half
hour intermittently, and the "pt states
taking bus exceeds his functional
capacities." It is immaterial that the
restrictions originated from [claimant's]
request for documentation of his inability
to ride the bus. The restrictions were
written on a work disability form and
indicated partial, not complete incapacity.
. . . The claimant has not looked for
any type of light-duty employment. Since he
failed to reasonably market his residual
work capacity, benefits were correctly
denied after January 19, 1998.
In light of Dr. Bonner's uncontradicted January 20, 1998
work disability form, which established that claimant was
partially but not totally disabled, and the lack of any evidence
to indicate that claimant made any effort to market his residual
work capacity, we cannot find as a matter of law that claimant's
evidence sustained his burden of proof. Accordingly, we affirm
the commission's decision.
Affirmed.
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