David Birmingham, Jr. v. Century Concrete

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
DAVID R. BIRMINGHAM, JR.
MEMORANDUM OPINION*
v. Record No. 0219-99-4 PER CURIAM
JUNE 8, 1999
CENTURY CONCRETE, INC. AND
PENNSYLVANIA MANUFACTURERS
INDEMNITY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(David R. Birmingham, Jr., pro se, on
briefs).
(John S. Nevin; Clarke, Dolph, Rapaport,
Hardy & Hull, P.L.C., on brief), for
appellees.
David Birmingham (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that he
failed to prove that he was totally disabled after May 19, 1998 as
a result of his compensable February 26, 1997 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's evidence sustained
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
his burden of proof, the commission's findings are binding and
conclusive upon us. See Tomko v. Michael’s Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
On February 26, 1997, claimant sustained a compensable injury
by accident to his face and both hands while working for employer.
On April 7, 1998, Dr. Jon Loftus, an orthopedist who examined
claimant for bilateral hand problems, opined that claimant was not
a surgical candidate. Dr. Loftus referred claimant to a pain
clinic. On May 19, 1998, claimant received a steroid injection at
the pain clinic from Dr. Emmanuel Nebab. On the May 19, 1998
Post-Procedure Discharge Form, Dr. Nebab discharged claimant and
instructed him to return to his "normal activity," except for some
minor protective measures for his left hand.
Based upon this medical evidence, the commission, as fact
finder, could reasonably infer that claimant was no longer totally
disabled as of May 19, 1998. Accordingly, we cannot say as a
matter of law that claimant's evidence sustained his burden of
proof. 1 Therefore, we affirm the commission's decision.
Affirmed.
1
On appeal, we did not consider any evidence that was not
properly before the commission when it rendered its decision.
Moreover, the commission did not err in refusing to consider Dr.
Nebab's October 29, 1998 letter and Dr. Loftus's September 9,
1998 New York Workers' Compensation Board form as
after-discovered evidence. Clearly, Dr. Nebab's opinion could
have been obtained prior to the hearing by the exercise of due
diligence, and Dr. Loftus's opinion was not relevant and would
not have mandated a different result.
- 2 -