Katiecorp, Inc. v. Tina Wade ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
KATIECORP, INC.
AND
INSURANCE COMPANY OF THE MEMORANDUM OPINION *
STATE OF PENNSYLVANIA PER CURIAM
DECEMBER 17, 1996
v. Record Nos. 1568-96-3 and
1821-96-3
TINA WADE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert M. McAdam; Wooten & Hart, P.C., on
brief), for appellants.
(Philip B. Baker; Joseph A. Sanzone
Associates, P.C., on brief), for appellee.
Katiecorp, Inc. and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in finding that Tina Wade was totally disabled
from working as of January 2, 1996 as a result of her compensable
February 22, 1994 injury by accident. On cross-appeal, Wade
contends that the commission erred in denying her benefits for
the period August 17, 1995 through January 1, 1996. Upon
reviewing the record and the briefs of the parties, we conclude
that these appeals are without merit. Accordingly, we summarily
affirm the commission's decision. Rule 5A:27.
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).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
In awarding temporary total disability benefits to Wade
commencing January 2, 1996, the commission found as follows:
I.
As early as January 2, 1996, Dr. [Joseph H.]
Wombwell was considering possible open
patella realignment surgery and surgery was,
in fact scheduled for later that month. Then
on March 5, 1996, Dr. Wombwell again
reiterated the employee's need for a surgical
solution to her knee problem. While he did
not specifically take Wade out of work in
January (most likely because she was not
working), we can infer from the medical
records leading up to this recommendation
that from that time forward the employee was
totally disabled.
Dr. Wombwell's medical records provide credible evidence to
support the commission's factual findings. Moreover, the
commission could reasonably infer from these medical records that
Wade was totally disabled beginning January 2, 1996. "Where
reasonable inferences may be drawn from the evidence in support
of the commission's factual findings, they will not be disturbed
by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7
Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).
II.
In order to establish an entitlement to benefits, a
partially disabled employee must prove that he or she has made a
reasonable effort to procure suitable work but has been unable to
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do so. Great Atlantic & Pacific Tea Co. v. Bateman, 4 Va. App.
459, 359 S.E.2d 98 (1987). The commission found that from August
17, 1995 through January 1, 1996, Wade failed to make that
required effort. The record supports this finding. During that
time she possessed marketable capability. She had employment
experience and access to an automobile. The record supports the
further finding that during that time, her only significant
attempt to find employment was to contact a job placement agency.
For these reasons, we affirm the commission's decision.
Affirmed.
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