Glenda D. Clendenin v. Mountain Empire ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
GLENDA D. CLENDENIN
MEMORANDUM OPINION *
v. Record No. 2714-97-3 PER CURIAM
APRIL 14, 1998
MOUNTAIN EMPIRE OLDER CITIZENS, INC.
AND NATIONAL ALLIANCE FOR RISK
MANAGEMENT SERVICE GROUP
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James Michael Shull, on brief), for
appellant.
(S. Vernon Priddy, III; Sands, Anderson,
Marks & Miller, on brief), for appellees.
Glenda D. Clendenin ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that she
was not totally disabled after July 15, 1996 as a result of her
compensable February 28, 1996 injury by accident. 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).
Unless we can say as a matter of law that claimant proved she
remained totally disabled after July 15, 1996, the commission's
findings are binding and conclusive upon us. See Tomko v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
In denying claimant an award of temporary total disability
benefits subsequent to July 15, 1996, the commission found as
follows:
Dr. [Kenneth D.] Kiser reported continuing
disability until his evaluation on May 14,
1996. The May 14 office note mentions
physical therapy, and the records contain a
referral to therapy. The office note of June
11, 1996, states that the claimant is being
followed by physical therapy. The referral
to therapy by Dr. Kiser during this time
period implies that he may have felt that she
was disabled. However, at the time of the
claimant's evaluation on July 15, 1996, he
reported that: "Back pain is markedly
improved . . . [.]" The lumbosacral exam was
reported normal, and the neurological exam
was reported intact. Again, there was no
indication of disability. By July 15, there
does not appear to be a reasonable basis upon
which to find that the claimant was still
totally disabled from employment. The
claimant stated that she had not sought any
employment.
Based upon Dr. Kiser's medical records, the commission could
reasonably conclude that claimant was not totally disabled after
July 15, 1996 as a result of her compensable back injury. No
evidence showed that claimant made any effort to market her work
capacity after that date. Accordingly, we cannot say as a matter
of law that claimant's evidence sustained her burden of proving
entitlement to an award of temporary total disability benefits
after July 15, 1996.
For these reasons, we affirm the commission's decision.
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Affirmed.
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