                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


SNAP CONTRACTING CORPORATION AND
 HARTFORD UNDERWRITERS INSURANCE COMPANY
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1851-99-2                  JUDGE DONALD W. LEMONS
                                                MARCH 28, 2000
DONALD KENT EASTWOOD


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            S. Vernon Priddy III (Mary Louise Kramer;
            William B. Judkins; Sands, Anderson, Marks &
            Miller, on briefs), for appellants.

            Richard B. Donaldson, Jr. (Mai Lan F. Isler;
            Jones, Blechman, Woltz & Kelly, P.C., on
            brief), for appellee.


     Snap Contracting Corporation and Hartford Underwriters

Insurance Company ("employer") appeal the decision of the

Virginia Workers' Compensation Commission reversing the deputy

commissioner's decision to suspend temporary total disability

benefits on the grounds of failure to market residual work

capacity, and ordering the reinstatement of Donald K. Eastwood's

compensation benefits.    Finding no error, we affirm.


     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                            I.   BACKGROUND

        Donald K. Eastwood suffered a compensable back injury on

December 9, 1991.    On March 23, 1992, pursuant to agreements of

the parties, Eastwood was awarded temporary total disability

benefits and then temporary partial disability benefits.      By an

award entered April 9, 1993, the commission directed employer to

pay temporary total disability benefits beginning October 21,

1992.    Medical records show that Dr. Thomas M. Stiles, an

orthopedic surgeon, who had treated Eastwood periodically before

December 9, 1991, treated him for this work injury as well.     In

an opinion dated November 9, 1993, the commission determined

that Eastwood injured his left ankle as a consequence of the

compensable work accident and awarded him further medical

benefits for the ankle injury.

        On December 13, 1996, the employer filed an Application for

Hearing seeking to terminate Eastwood's temporary total

disability benefits contending that he had unreasonably refused

medical treatment, that he had returned to work without

reporting his earnings, that he was perpetrating a fraud through

his ongoing insistence that he remained entitled to benefits and

that he was no longer disabled as a result of the accident.

        By opinion issued February 18, 1998, the deputy

commissioner found that Eastwood continued to be disabled from

his pre-injury employment as a result of injuries related to his

work accident.    The deputy commissioner also found that

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Eastwood, without justification, failed to enter a work

hardening program that was prescribed by Dr. Lisa Barr. 1

Compensation benefits were suspended as of January 23, 1996.

The deputy commissioner found, however, that the employer failed

to offer Eastwood a panel of physicians within a reasonable time

after Dr. Barr withdrew as Eastwood's treating physician and

that treatment obtained later from Dr. Stiles established Dr.

Stiles as the newly authorized treating physician.        Finally, the

deputy commissioner found that Eastwood earned $200 as a bouncer

in 1995 while under the open award and $2,080 as a construction

worker in 1997.

       Both parties moved for reconsideration and the deputy

commissioner vacated the February 18, 1998 opinion by order

issued March 10, 1998.      A new opinion was issued on May 15, 1998

affirming the February 18th findings of fact and conclusions of

law.       In addition, the deputy commissioner held that Eastwood,

by receiving treatment from Dr. Stiles after Dr. Barr withdrew

as his treating physician, cured his unreasonable refusal of

medical care as of August 7, 1996.         The deputy commissioner

found, however, that Eastwood did not prove that he marketed his

residual capacity after the cure and, therefore, the suspension


       1
       In an opinion issued November 1, 1995, the deputy
commissioner approved the employer's application for a change in
physicians and designated Dr. Barr as the new authorized
physician. The full commission affirmed the deputy
commissioner's opinion on May 6, 1996.


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of benefits for refusing medical care was continued.   The deputy

commissioner further directed that the employer should receive a

credit in the amount of $133.36 for monies earned in 1995 while

under the open award pursuant to Code § 65.2-712.

     Eastwood appealed to the full commission, challenging his

obligation to prove marketing of residual capacity based on the

fact that neither party raised it as an issue and, if such an

obligation existed, regardless of the parties' failure to raise

the issue, that he should have had the chance to offer evidence

tending to establish adequate marketing.

     By opinion dated July 2, 1999, the commission reversed the

deputy commissioner's decision suspending the award of temporary

total disability benefits and held that no duty to market

residual capacity existed.   During the period that Eastwood

unjustifiably refused medical treatment, he was being paid

compensation pursuant to a pre-existing award.   By the time the

employer filed its Application for Hearing challenging

Eastwood's receipt of temporary total disability benefits on

December 13, 1996, however, he had cured the unjustified refusal

by resuming medical treatment with Dr. Stiles.   The commission

held that "the Deputy Commissioner could have only properly

suspended benefits for the unjustified refusal as of the last

day for which compensation was paid pursuant to the

[outstanding] award."   Since the refusal was cured before the

last day for which compensation was paid pursuant to the

                               - 4 -
outstanding award, the suspension of the award for that period

was moot.   The employer was ordered to reinstate compensation

payments beginning December 16, 1996, the day after the last

payment of compensation pursuant to the April 9, 1993 award, and

continuing until conditions justify a modification.

            II.   FAILURE TO MARKET RESIDUAL WORK CAPACITY

     A claimant receiving compensation for temporary total

disability is under no duty to market remaining work capacity.

See, e.g., Georgia Pacific Corp. v. Dancy, 17 Va. App. 128, 134,

435 S.E.2d 898, 901-02 (1993).

     Here the unjustified refusal of medical treatment resulted

in suspension of the award.    The refusal, however, was cured

before the end of the benefit period and before employer filed

its application.    The commission properly reversed the deputy

commissioner's determination that Eastwood failed to market

residual work capacity.    At that time, Eastwood was under an

outstanding award for total disability and had no duty to

market.

             III.   CURE OF REFUSAL OF MEDICAL TREATMENT

     Eastwood appealed the deputy commissioner's decision

regarding the issue of failure to market residual work capacity.

The employer did not appeal to the full commission the holding

that claimant cured his unjustified refusal of medical

treatment; consequently, we are barred from reviewing that

holding on appeal.     See Rule 5A:18.

                                 - 5 -
                IV.   DISCRETION OF THE COMMISSION

     Rule 3.1 of the Rules of the Virginia Workers' Compensation

Commission provides, in pertinent part:

          A request for review should assign as error
          specific findings of fact and conclusions of
          law. Failure of a party to assign any
          specific error in its request for review may
          be deemed by the Commission to be a waiver
          of the party's right to consideration of
          that error. The Commission may, however, on
          its own motion, address any error and
          correct any decision on review if such
          action is considered to be necessary for
          just determination of the issues.

In this case the commission lawfully exercised its discretion

and declined to consider issues not raised by the employer.      See

Brushy Ridge Coal Co., Inc. v. Blevins, 6 Va. App. 73, 78, 367

S.E.2d 204, 207 (1988).

                          V.   CONCLUSION

     We find no error in the commission's decision and no abuse

of discretion in its review of the rulings of the deputy

commissioner.

                                                     Affirmed.




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