William G. Luke v. TruGreen Chemlawn ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
WILLIAM G. LUKE
MEMORANDUM OPINION *
v. Record No. 0928-96-1 PER CURIAM
OCTOBER 1, 1996
TRUGREEN CHEMLAWN
AND
HOME INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William E. Baggs, on briefs), for appellant.
(W. Trent Dudley; Knight, Dudley, Clarke &
Dolph, on brief), for appellees.
William G. Luke ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in suspending his
award on the ground that he unjustifiably refused selective
employment offered to him by TruGreen Chemlawn ("employer").
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.
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).
Findings of fact 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).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In granting employer's application, the commission made the
following findings:
On January 10, 1995, Dr. [Andrew] Messer
released the claimant to work four hours a
day, standing and sitting at will with no
deep bending. He reiterated this release on
January 24, 1995.
Thomas Brein, residential sales manager,
testified that he offered the claimant light
duty work as a telemarketer beginning January
11, 1995. He stated that the telemarketing
work was identical to his previous sales work
except it involved only the telephone. The
claimant reported to work, but worked less
than four hours. He worked sporadically
until January 26, 1995, and was terminated on
February 7, 1995, for failing to report to
work. He has not worked since then.
Dr. Messer's medical records and opinions and Brein's
testimony provide credible evidence to support the commission's
decision. On June 21, 1995, Dr. Abbott Byrd, III, who examined
claimant at employer's request, agreed with Dr. Messer's work
release. In addition, none of the physicians who examined
claimant could find an objective basis to support claimant's
subjective complaints of severe pain. Rather, they found symptom
magnification and recommended claimant undergo psychological
counseling. Finally, no medical evidence indicated that claimant
could not perform the light-duty position offered to him by
employer. Based upon this record, the commission, as fact
finder, was entitled to give little weight to claimant's
testimony that he could not perform the light-duty job due to
back pain.
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For the reasons stated, we affirm the commission's decision.
Affirmed.
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