William E. Webster v. E v. Williams Co. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
WILLIAM E. WEBSTER
v. Record No. 0452-97-1 MEMORANDUM OPINION *
PER CURIAM
E.V. WILLIAMS COMPANY, INC. JULY 1, 1997
AND
LIBERTY INSURANCE CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William E. Webster, pro se, on brief).
No brief for appellees.
William E. Webster (claimant) contends that the Workers'
Compensation Commission (commission) erred in suspending his
compensation benefits on the ground that he unjustifiably refused
selective employment offered to him by E.V. Williams Company,
Inc. (employer). Upon reviewing the record and opening brief, we
conclude that this appeal is 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. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Findings of fact made by the commission will 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).
The following facts were not in dispute. On March 25, 1996,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Dr. Richard K. Neal, claimant's treating physician, released
claimant to light-duty work with specific restrictions. By
letter dated March 27, 1996, employer offered claimant a
light-duty job within those restrictions and directed him to
report to work on April 3, 1996. On April 3, 1996, claimant
telephoned employer and stated that he was in pain and unable to
report for work that day. Claimant did not contact employer
thereafter.
In granting employer's application, the commission made the
following findings:
The claimant contends that his former
attorney obtained agreement from the employer
that he would be excused from reporting for
work on April 3, 1996, because of his
complaints. However, prior counsel was not
called as a witness. In addition, the
claimant was not privy to the conversation
between counsel and the employer. There is
no evidence that such an agreement existed,
other than his testimony, which we find not
persuasive. Apparently, there was some
discussion of the claimant obtaining an
independent evaluation and the submission of
a medical report based on that evaluation.
The record contains medical reports from Dr.
Peter M. Klara, spine surgeon, dated April
12, 1996, and Dr. M.R. Ross Bullock,
neurosurgeon, dated May 1, 1996. However,
those reports are inconclusive and do not
rebut Dr. Neal's findings, nor his specific
approval on April 17, 1996, of the job which
was previously offered the claimant.
Dr. Neal's medical records and opinions provide credible
evidence to support the commission's decision. As fact finder,
the commission was entitled to give little probative weight to
the inconclusive reports of Drs. Klara and Bullock. Claimant
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contended that he could not perform the job offered to him by
employer. However, claimant never attempted to perform the job
nor did he provide credible medical evidence to support his
subjective belief that he could not perform the duties of the
light-duty job offered to him by employer.
Based upon this record, we cannot find that the commission
erred in granting employer's application and suspending
claimant's benefits. Accordingly, we affirm the commission's
decision.
Affirmed.
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