Henry A. Reed, etc. v. Roger Dale Fisher, Sr ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
HENRY A. REED T/A REED CONSTRUCTION
v. Record No. 2663-96-2 MEMORANDUM OPINION *
PER CURIAM
ROGER DALE FISHER, SR., APRIL 1, 1997
TIM LAMBERT T/A LAMBERT CONSTRUCTION,
AUTO OWNERS INSURANCE COMPANY AND
CRITTENDEN ADJUSTMENT COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William T. Fitzhugh; Beddow, Marley &
Associates, on briefs), for appellant.
(B. Mayes Marks, Jr., on brief), for appellee
Roger Dale Fisher, Sr.
(Mark M. Caldwell, III; Sands, Anderson,
Marks & Miller, on brief), for appellees Tim
Lambert t/a Lambert Construction, Auto Owners
Insurance Company and Crittenden Adjustment
Company.
Henry A. Reed t/a Reed Construction (employer) contends that
the Workers' Compensation Commission (commission) erred in
finding Roger D. Fisher, Sr. (claimant) proved he was totally
disabled from August 8, 1995 through September 1, 1995 and from
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September 14, 1995 and continuing. 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. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Claimant conceded before the commission that he attempted
to work during the first two weeks in September 1995, and he
waived his claim for benefits for these two weeks.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Dr. Mohamed Tawfick's medical records and his February 28,
1996 responses to claimant's counsel's written questions provide
ample credible evidence to support the commission's decision.
Dr. Tawfick treated claimant from August 8, 1995, the date of his
work-related accident, through December 7, 1995. In responding
to counsel's questions on February 28, 1996, Dr. Tawfick stated
that he had taken claimant out of work during the course of his
treatment. In addition, Dr. Tawfick stated that as of February
28, 1996, he had not released claimant to return to work.
Employer presented no medical evidence to dispute Dr. Tawfick's
opinions. In addition, based upon claimant's testimony, the
commission could infer that claimant did not return to Dr.
Tawfick after December 7, 1995 because employer had denied the
claim, and claimant had no resources with which to seek medical
treatment.
Because Dr. Tawfick's undisputed medical records and
opinions provide credible evidence to support the commission's
finding that claimant was totally disabled from August 8, 1995
through September 1, 1995 and from September 14, 1995 and
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continuing, this finding is binding and conclusive upon us on
appeal.
Claimant's request for an award of attorney's fees and costs
pursuant to Code § 65.2-713 is denied. For the reasons stated,
we affirm the commission's decision.
Affirmed.
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