Rick Eugene Dudley v. Paramount's Kings Dominion

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
RICK EUGENE DUDLEY
v. Record No. 1814-96-2 MEMORANDUM OPINION *
PER CURIAM
PARAMOUNT'S KINGS DOMINION JANUARY 7, 1997
AND
AETNA CASUALTY AND SURETY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Rick Eugene Dudley, pro se, on brief).
(F. Brawner Greer; McGuire, Woods, Battle &
Boothe, on brief), for appellees.
Rick Eugene Dudley ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in denying his
application alleging a change in condition and seeking temporary
total disability benefits commencing December 27, 1994. 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).
"General principles of workman's compensation law provide that
'[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App.
459, 464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight
Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570,
572 (1986)). Unless we can say as a matter of law that
claimant's evidence sustained his burden of proof, the
commission's findings are binding and conclusive upon us. Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
In holding that claimant's evidence did not establish that
his regular employment duties required lifting in excess of
twenty-five pounds, the commission found as follows:
The burden is upon [claimant] to establish
that his duties exceed this restriction, and
there is nothing in the record in that
regard. The claimant did testify that he
engaged in other activities from time to time
on behalf of his employer, but it is not
clear from the record whether these were
duties which were expected or required of
him. The record is clear that he was injured
while lifting a section of flooring,
apparently part of a stage, that weighed more
than 25 pounds, but again we cannot determine
if such work was a part of his employment
duties, as opposed to work which he did
voluntarily.
It was undisputed that claimant's physicians released him to
perform work, which did not require lifting in excess of
twenty-five pounds. No evidence established that the regular
duties of claimant's pre-injury job as a guitar player required
that he lift objects weighing more than twenty-five pounds.
2
Although claimant testified that on two occasions he lifted
objects weighing more than twenty-five pounds while working for
employer, no evidence established that these tasks were a
required and expected part of his job as a musician. In short,
claimant never testified regarding the specific duties required
of him in the musician job nor did he present any other evidence
to establish those duties. Accordingly, the commission was
entitled to conclude that claimant's regular employment as a
guitar player did not require lifting in excess of twenty-five
pounds. Based upon this record, we cannot say as a matter of law
that claimant's evidence sustained his burden of proving that he
could not perform the duties of his pre-injury employment. 1
For these reasons, we affirm the commission's decision.
Affirmed.
1
In rendering our decision, we did not consider evidence
submitted by claimant with his brief, which was not properly
before the commission when it rendered its decision.
3