Zenith Hilliard v. Tri Travel Network, Inc. ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
ZENITH HILLIARD
MEMORANDUM OPINION *
v. Record No. 0585-98-3 PER CURIAM
AUGUST 25, 1998
TRI TRAVEL NETWORK, INC. AND
NATIONWIDE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Terry L. Armentrout; Armentrout &
Armentrout, on brief), for appellant.
(John K. Coleman; Slenker, Brandt, Jennings &
Johnston, on brief), for appellees.
Zenith Hilliard ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that Tri
Travel Network, Inc. ("employer") proved that claimant was
released to return to her pre-injury employment as of May 15,
1996. 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).
Factual findings made by the commission must be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In granting employer's application, the commission found as
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
follows:
As to the weight restriction, we AFFIRM
the Deputy Commissioner's decision. Ms.
White weighed a box filled with files and
determined that it weighed only 21 1/2
pounds. The claimant's testimony that the
filled box weighed more than 50 pounds was
based on her guess. The Deputy Commissioner
properly gave greater weight to Ms. White's
testimony.
* * * * * * *
Neither the claimant's regular duties,
nor the job description approved by Dr.
[Ritchie] Gillespie require the claimant to
do her work from a standing position. Dr.
Gillespie's view of the claimant's ability to
sit, changed from February to May. While the
claimant could not sit for more than one hour
at a time in February, by May it was Dr.
Gillespie's opinion, as shown by his approval
of the job description, that the claimant
could perform a job that required her to sit
or stand "as needed." A fair reading of the
job description together with Dr. Gillespie's
office notes show that he believed the
claimant could perform her sedentary job so
long as she could stand whenever necessary.
The claimant testified that she usually
performed her job sitting but she was able to
stand as necessary.
Dr. Gillespie's medical records, his approval of the job
description which he discussed with claimant, and claimant's
testimony that she could stand as necessary in her pre-injury
work, constitute credible evidence to support the commission's
finding that claimant was fully able to return to her pre-injury
employment.
For these reasons, we affirm the commission's decision.
Affirmed.
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