Charles A. Finchum v. Sears Roebuck & Co.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
CHARLES A. FINCHUM
v. Record No. 2985-95-2 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
SEARS ROEBUCK & COMPANY AND MAY 28, 1996
LUMBERMENS MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Charles A. Finchum, pro se.
Glenn S. Phelps (R. Ferrell Newman; Thompson,
Smithers, Newman & Wade, on brief), for
appellees.
In this workers' compensation appeal, Charles A. Finchum
(claimant) argues that the commission erred in finding that he
was not entitled to temporary total disability benefits for the
period claimed. For the reasons that follow, we affirm the
commission.
On May 21, 1994, claimant, a loss prevention manager,
sustained a compensable injury to his left shoulder while working
for Sears Roebuck & Company (employer). In a July 4, 1994
report, claimant's treating physician, Dr. Steven H. Jones,
indicated that claimant suffered no disability as a result of his
industrial accident. Claimant continued to work in his pre-
injury employment until September 3, 1994. On that date, he
resigned as part of a settlement of an unrelated civil suit
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
between himself and employer. On January 27, 1995, Dr. Jones
recommended an arthroscopic decompression of claimant's left
shoulder. At that time, employer voluntarily began paying
claimant temporary total disability benefits.
Claimant sought temporary total disability benefits
beginning September 3, 1994, and continuing. In a November 15,
1995 opinion, the commission determined that claimant was not
entitled to benefits from September 3, 1994 to January 26, 1995
because "claimant presented no testimony that he could not
medically perform his regular job as a loss prevention supervisor
during the period claimed."
On appeal, claimant argues that the commission erred in
denying him benefits from September 3, 1994 to January 26, 1995.
He asserts that, when he returned to his pre-injury employment,
he worked in a light-duty capacity.
"[W]e review the evidence in the light most favorable to the
prevailing party." R.G. Moore Bldg. Corp. v. Mullins, 10 Va.
App. 211, 212, 390 S.E.2d 788, 788 (1990). "Factual findings of
the . . . [c]ommission 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 the instant case, credible evidence supports the
commission's finding that claimant failed to establish that his
medical condition caused his unemployment. The record indicates
that claimant returned to his pre-injury employment after his
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industrial accident. No evidence shows that claimant was unable
to perform all of the duties required of a loss prevention
manager, or that his duties were altered or restricted to
accommodate any disability. Additionally, claimant admitted that
he left his employment on September 3, 1994, as part of the
settlement of the unrelated lawsuit, not because of his
work-related injury.
Claimant also requests that we remand his claim to the
commission for the taking of additional evidence. Rule 3.3 of
the Rules of the Virginia Workers' Compensation Commission
provides that "[a] petition to reopen or receive after-discovered
evidence may be considered only upon request for review" before
the commission. Thus, remand is an inappropriate remedy in this
case.
Accordingly, the decision of the commission is affirmed.
Affirmed.
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