                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff,* Judge Petty and Senior Judge Annunziata
UNPUBLISHED


              Argued at Lexington, Virginia


              ROGER SMITH
                                                                            MEMORANDUM OPINION** BY
              v.     Record No. 0475-14-3                                 JUDGE ROSEMARIE ANNUNZIATA
                                                                                 JANUARY 27, 2015
              DOMINION TECHNICAL SOLUTIONS AND
               VIRGINIA ELECTRIC AND POWER COMPANY


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Amber H. Russo (HammondTownsend, PLC, on briefs), for
                               appellant.

                               Arthur T. Aylward (Emily O. Sealy; Midkiff, Muncie & Ross, P.C.,
                               on brief), for appellees.


                     Roger Smith (claimant) appeals a decision of the Workers’ Compensation Commission

              (the commission) denying his claim for temporary total disability benefits beyond January 29,

              2013. Claimant contends the commission erred by finding he failed to prove he was totally

              disabled after January 29, 2013. Dominion Technical Solutions and Virginia Electric and Power

              Company (collectively employer) list seven assignments of cross-error alleging the commission

              erred by (1) finding that claimant “proved that he sustained a compensable injury by accident on

              March 8, 2012,” (2) finding that “the discrepancies in [claimant’s] descriptions of the accident in the

              medical records were ‘minor,’” (3) finding that claimant provided employer with timely notice of

              his injury, (4) finding that the deputy commissioner “‘implicitly found that [] claimant provided

              notice less than 24 hours after his injury by accident,’” (5) finding that claimant “could not have

                     *
                         On January 1, 2015, Judge Huff succeeded Judge Felton as chief judge.
                     **
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
informed his medical providers about a work accident without also informing” employer,

(6) awarding claimant medical and indemnity benefits beginning March 9, 2012, and (7) “not

addressing [employer’s] defenses of no proof of continuing disability and failure to market wage

earning capacity.”

       We hold the commission erred in finding claimant failed to prove he was totally disabled

after January 29, 2013. We further find no merit in the employer’s assignments of error. Thus,

we reverse the commission’s decision in part and affirm in part.

                                        BACKGROUND

       On appeal, we view the “evidence and all reasonable inferences that may be drawn from

that evidence” in the light most favorable to the party prevailing before the commission. Artis v.

Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83, 608 S.E.2d 512, 517 (2005) (en banc).

       Claimant worked as an electrical equipment specialist for employer. His work included

moving and lifting heavy objects. On March 8, 2012, claimant and a co-worker were unloading

a capacitor checker stored in a large trunk. Claimant testified that as he was removing the trunk

from a work van, he felt a sharp pain in his lower back. His back began to “stiffen up” after he

lowered the trunk. Claimant explained he did not immediately mention the incident to his

co-worker beyond commenting that he was “getting old.” Another co-worker arrived a short

time later, and claimant went home without telling either of them in detail about his injury.

       Claimant testified he was in more pain when he awoke the next morning, and he called

his supervisor, Todd Ragland. Claimant spoke to Ragland several times over the course of the

following week and advised Ragland about his injury. However, Ragland, to the contrary,

testified he was not aware that claimant had been injured at work until November 2012, at which

time he instructed claimant to prepare a written statement regarding the accident. When

claimant’s available leave was exhausted, employer terminated his employment.
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        Claimant sought treatment at a hospital emergency department on the morning of March

9, 2012. On March 12, 2012, he was evaluated by Dr. Scott M. Seaton, was referred to physical

therapy, and placed out of work from March 10 through March 15, 2012 as a result of his back

pain.

        Dr. James R. Reid, claimant’s primary care physician, first treated claimant on March 23,

2012. Dr. Reid saw claimant again on April 10, at which time he placed claimant out of work

from March 9 through May 10, 2012. On July 18, 2012, Dr. Reid again placed claimant out of

work. On January 13, 2013, in response to an inquiry from a disability benefits specialist,

Dr. Reid explained that claimant was in severe pain, was restricted from lifting, walking, and

standing and was unable to work in any capacity. The physician’s prognosis for improvement in

claimant’s condition was “very poor - - headed for SSI/permanent disability.”

        Nineteen days later on January 29, 2013, Dr. Reid reexamined claimant and, while he did

not specifically repeat that claimant was unable to work, he did not alter his earlier assessment.

He reported claimant “clearly is unable to sit for extended periods of time, concentrate, and after

30 minutes, is completely exhausted and fatigued.” Dr. Reid advised claimant to continue his

use of prescribed medication and to return in two months. He did not modify or comment on the

claimant’s work status.

        The January 29, 2013 visit with Dr. Reid was claimant’s last medical consultation prior to

the deputy commissioner’s hearing. However, in the intervening time, claimant was deposed on

March 11, 2013 and questioned about his condition. At the time of the deposition, claimant

stated that he was consistently experiencing “a pain level of seven to eight” and that he was

taking three different pain medications on a daily basis. He detailed his inability to lift heavy

objects and his need for assistance from relatives. Claimant testified that “[a]nything [he] do[es]

that compresses [his] back, even vibration, . . . really hurts.” He indicated he becomes “very
                                                -3-
uncomfortable” just from “walking, sitting, [or] standing” and that his “concentration level is

somewhat very hard.” Claimant also stated he no longer attended physical therapy sessions

because his doctor advised him they would not provide further benefit. He testified, “[My doctor

is] basically telling me, ‘you’ve got to live with the quality of life that you have.’” He also

confirmed that his “doctors have [him] totally out of work” and that he did not have the

“capacity [for] handling work,” even light work.

       Four months later on July 31, 2013 when claimant testified at the deputy commissioner’s

hearing, his condition had not improved. Indeed, claimant specifically testified his condition was

worse than it had been the year before, explaining that he “[couldn’t] do anything that [he] used

to be able to do,” that the condition has affected his “bladder and [his] colon,” and that “any type

of vibration tears [his] back up.”

       The deputy commissioner concluded claimant “established that he suffered a

compensable injury by accident as described” and that he “is unable to work in any capacity.”

The deputy commissioner expressly premised his decision on “the consistent medical records

and the claimant’s credible demeanor at the hearing[.]”

       On appeal, the full commission reversed the portion of the deputy commissioner’s

opinion awarding claimant temporary total disability benefits beyond January 29, 2013. In

concluding claimant failed to meet his burden to prove he continued to be totally disabled the

commission emphasized the record did not include any recent medical evidence. The remainder

of the deputy commissioner’s opinion was affirmed. This appeal followed.

                                            ANALYSIS

                                       Continuing Disability

       “There is no presumption in the law that once a disability has been established, a claimant

will be assumed to remain disabled for an indefinite period of time.” Marshall Erdman &
                                                -4-
Assocs. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997). “Unless we can say as a

matter of law that the evidence submitted by claimant sustained his burden of proof, the

commission’s determination is binding upon this Court.” Donovan v. United Parcel Service,

Inc., 63 Va. App. 438, 445, 758 S.E.2d 99, 102 (2014) (citing Tomko v. Michael’s Plastering

Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970)).

       Claimant bears the burden of proving his disability and the periods of that disability by a

preponderance of the evidence. Loehr, 24 Va. App. at 679, 485 S.E.2d at 149-50. See also Byrd

v. Stonega Coke & Coal Co., 182 Va. 212, 221, 28 S.E.2d 725, 729 (1944) (Although a claimant

has the burden of establishing his claim, he need not do so beyond all reasonable doubt.).

Furthermore, in workers’ compensation cases, “[i]f there be any fair doubt about the facts, they

should be resolved in favor of the claimant.” Ellis v. Commonwealth Dep’t of Highways, 182

Va. 293, 304, 28 S.E.2d 730, 735 (1944) (citing Scott v. Willis, 150 Va. 260, 142 S.E. 400

(1928)). Where, as here,

               there is “no conflict in the evidence, the question of the sufficiency
               thereof is one of law,” City of Norfolk v. Bennett, 205 Va. 877,
               880, 140 S.E.2d 655, 657 (1965), and the same is true when there
               is no credible evidence to support the Commission’s factual
               findings, Conner v. Bragg, 203 Va. 204, 207, 123 S.E.2d 393, 395
               (1962).

VEPCO v. Kremposky, 227 Va. 265, 269, 315 S.E.2d 231, 233 (1984). See also Frey v. Gunston

Animal Hospital, 39 Va. App. 414, 419, 573 S.E.2d 307, 309 (2002). “In other words, the

commission’s decision, unlike one based on conflicting facts, is not conclusive; rather, it is

subject to our determination whether ‘“the correct legal conclusion has been reached.”’” Id.

(quoting Eccon Const. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981)). See also

Breckenridge v. Marval Poultry Co., 228 Va. 191, 195-96, 319 S.E.2d 769, 772 (1984).




                                                -5-
       Applying this standard of review, we conclude that claimant proved his disability

continued after January 29, 2013 as a matter of law based on the following evidence: the

medical records that established the specific disabilities claimant suffers; the prognosis of likely

permanency made by the claimant’s physician; the claimant’s unimpeached deposition testimony

and his testimony before the deputy commissioner, likewise unimpeached, in which he detailed

his continuing and deteriorating physical condition, symptoms, and inability to work as

confirmed in the medical reports; and the deputy commissioner’s credibility determination based

on claimant’s demeanor at the hearing, to which the full commission expressly deferred.

       Employer relies on Loehr and Hoffman v. Carter, 50 Va. App. 199, 648 S.E.2d 318

(2007), to support its argument that claimant’s evidence failed to establish his continuing

disability. Employer’s reliance is misplaced as both cases may be distinguished on their facts.

       In Loehr, we affirmed the commission’s denial of benefits because the only medical

record admitted was patently inconsistent with the claim that claimant’s disability was ongoing.

Although the medical evidence in Loehr showed claimant’s physician had placed him on light

duty some ten months before the deputy commissioner’s hearing and seventeen months before

the hearing before the full commission, the record also showed that Loehr would eventually be

returned to full duties, a fact the Court found determinative in affirming the commission’s denial

of ongoing disability benefits. 24 Va. App. at 680, 485 S.E.2d at 150.

       In Hoffman, this Court reversed the commission’s award of benefits because the work

slip admitted as evidence of ongoing disability was not issued by a physician but “purportedly

. . . by Clinic personnel . . . almost nine months after [the claimant’s] last recorded [medical]

examination.” 50 Va. App. at 217, 648 S.E.2d at 327. Moreover, the claimant’s testimony was

ineffective as it simply restated the information in the disability slips that the commission had

found wanting. Id.
                                                -6-
       Neither Loehr nor Hoffman stand for the proposition that the absence of a recent medical

report specifically declaring a claimant unable to work, in itself, precludes finding that a

claimant’s disability is ongoing, as a matter of law. As reasoned in both decisions, the recency

of such a report is only one factor to be considered, together with other credible, substantive

evidence, including the claimant’s testimony, in determining whether a claimant proved his

disability and the periods of that disability. See Dollar Gen. Store v. Cridlin, 22 Va. App. 171,

176, 468 S.E.2d 152, 154 (1996) (A claimant’s testimony may be considered together with

medical records to make factual findings.); see also Arthur Larson, The Law of Workmen’s

Compensation § 79.51(a) (1995) (“In appropriate circumstances, awards may be made when

medical evidence on these matters is inconclusive, indecisive, fragmentary, inconsistent, or even

nonexistent.”).

       Accordingly, we reverse the commission’s decision that the claimant was not entitled to

temporary total disability benefits after January 29, 2013 as it rests on insufficient evidence and

find, as a matter of law, that claimant proved his disability continued after January 29, 2013.

Therefore, we remand the case to the commission to reinstate the deputy commissioner’s award.

                                 Compensable Injury by Accident

       Employer argues claimant failed to establish he sustained a compensable injury by

accident on March 8, 2012. For the reasons that follow, we find the commission did not err in

concluding claimant established a compensable injury by accident.

       To obtain compensation for his injuries, a claimant must prove by a preponderance of the

evidence that he suffered an injury by accident “arising out of and in the course of the

employment.” Code § 65.2-101. On appeal, whether an employee has suffered an “injury by

accident” is a mixed question of law and fact. R&R Constr. Corp. v. Hill, 25 Va. App. 376,

378-79, 488 S.E.2d 663, 664 (1997). This Court upholds the commission’s findings of fact on
                                                -7-
appeal if credible evidence supports them. James v. Capitol Steel Constr. Co., 8 Va. App. 512,

515, 382 S.E.2d 487, 488 (1989). However, whether those facts prove that a claimant suffered

an “injury by accident” is a question of law. Goodyear Tire & Rubber Co. v. Harris, 35 Va. App.

162, 168, 543 S.E.2d 619, 621 (2001) (citing Tomko, 210 Va. at 699, 173 S.E.2d at 835). The

commission’s findings on legal questions are not conclusive and binding upon the Court, but are

properly subject to judicial review. Id. (citing Hill, 25 Va. App. at 378-79, 488 S.E.2d at 664).

       “One seeking compensation retains the burden of proving by a preponderance of the

evidence that he sustained a compensable injury.” Williams v. Auto Brokers, 6 Va. App. 570,

571-72, 370 S.E.2d 321, 322 (1988) (citing Hercules, Inc. v. Stump, 2 Va. App. 77, 79, 341

S.E.2d 394, 395 (1986)). “‘Injury’ means only injury by accident arising out of and in the course

of employment.” Code § 65.2-101. “An ‘injury by accident’ requires proof of ‘(1) an

identifiable incident; (2) that occurs at some reasonably definite time; (3) an obvious sudden

mechanical or structural change in the body; and (4) a causal connection between the incident

and the bodily change.’” Ogden Aviation Servs. v. Saghy, 32 Va. App. 89, 94, 526 S.E.2d 756,

758 (2000) (quoting Chesterfield Cnty. v. Dunn, 9 Va. App. 475, 476, 389 S.E.2d 180, 181

(1990)).

       The commission found that claimant suffered a compensable injury by accident on March

8, 2012 when he lifted the trunk from the truck and felt a sharp pain in his lower back. The

deputy commissioner found claimant had “consistently described the onset of some level of pain

from moving the capacitor at work.” The deputy commissioner found claimant’s demeanor at

the hearing credible and noted his largely consistent account of the injury was supported by the

medical evidence. As noted above, the full commission specifically deferred to the deputy

commissioner’s credibility determination. The commission found claimant met his burden to

prove his claim that he suffered a compensable injury by accident on March 8, 2012. The record
                                               -8-
fully supports that finding. Claimant’s testimony, combined with the medical evidence,

established claimant was injured while lifting the trunk at work.

        Employer argues the commission’s characterization of discrepancies in claimant’s

descriptions of the accident in the medical records as “minor” was error. As noted above, on

appeal, we defer to the commission’s assessment of the “probative weight” of the proffered

evidence, and we recognize that the commission “is free to adopt that view ‘which is most

consistent with reason and justice.’” Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526

S.E.2d 267, 269 (2000) (quoting C.D.S. Contr. Services v. Petrock, 218 Va. 1064, 1070, 243

S.E.2d 236, 240 (1978)).

        Employer asserts claimant stated at various times that the pain started upon lifting the

trunk, that the pain started several hours after the lifting, and that he did not feel any pain until

the following morning. The deputy commissioner noted the discrepancies but concluded they

were “minor” and accepted claimant’s contention that the lifting was the cause of his back pain.

Unless it can be said that the evidence supporting the commission’s finding of fact is incredible

as a matter of law, we must affirm “even though there is evidence in the record to support a

contrary finding.” S.P. Terry Co., Inc. v. Rubinos, 38 Va. App. 624, 632, 567 S.E.2d 584, 588

(2002) (citations omitted). Here, the record supports the commission’s finding that the

inconsistencies in claimant’s descriptions of the accident were minor and that claimant

established he suffered a compensable injury by accident.

                                                Notice

        Employer asserts the commission erred by finding claimant provided timely notice of his

injury, by holding the deputy commissioner “‘implicitly found that claimant provided notice less

than 24 hours after his injury by accident,’” and by adopting the deputy commissioner’s finding

that claimant “could not have informed his medical providers about a work accident without also
                                                 -9-
informing” employer. Employer also contends the commission erred by awarding medical and

indemnity benefits beginning March 9, 2012 without having determined a specific date of notice.

       Code § 65.2-600 requires an employee to provide notice of his work-related accident to

his employer “as soon thereafter as practicable.” We have recognized that “‘where there was no

written notice but . . . where a foreman or superior officer had actual knowledge of the

occurrence of an accident . . . within a reasonable time after the accident . . . occurred and no

prejudice to the employer’s rights was shown,’” a claimant has provided sufficient notice under

this provision of the statute. Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 138, 371 S.E.2d

828, 832 (1988) (quoting Department of Game and Inland Fisheries v. Joyce, 147 Va. 89, 97,

136 S.E. 651, 654 (1927)).

       The deputy commissioner found claimant “adamantly” and “credibly” testified he

repeatedly informed Ragland about his injury. The deputy commissioner concluded claimant’s

account of the events established he provided employer with the requisite notice. The full

commission agreed, deferring to the deputy commissioner’s credibility determination. Ragland

confirmed that he spoke with claimant several times after the accident, including the morning

following the incident. Although Ragland claimed claimant had not indicated the accident

occurred at work, the commission permissibly rejected his testimony. The commission found

claimant gave notice the morning after the accident, emphasizing the deputy commissioner

specifically found claimant’s testimony credible. The deputy commissioner noted in his opinion

that the commission “is not willing to believe that the claimant informed his health care

providers of a work accident but not his employer.” “‘If there is evidence, or reasonable

inferences can be drawn from the evidence, to support the commission’s findings, they will not

be disturbed on review, even though there is evidence in the record to support a contrary

finding.’” Amelia Sand Co. v. Ellyson, 43 Va. App. 406, 408, 598 S.E.2d 750, 751 (2004)
                                                - 10 -
(quoting Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877

(1986)); see also Code § 65.2-706(A). The commission reasonably inferred from claimant’s

testimony and the medical records that claimant promptly informed employer of the workplace

accident. The commission’s factual finding that claimant reported the accident to his supervisor

on the morning of March 9, 2012 is supported by credible evidence. Furthermore, the record

discloses no prejudice to employer resulting from claimant’s failure to give written notice of the

accident and injury.

                                       Remaining Defenses

       Employer argues the commission erred in not addressing its “defenses of no proof of

continuing disability and failure to market residual wage earning capacity.”

       As noted above, the evidence supported the commission’s finding that claimant was

totally disabled beginning March 9, 2012. The commission was not persuaded by employer’s

argument that the deputy commissioner failed to address its argument that claimant was not

disabled as alleged. The record supports that finding and demonstrates claimant was totally

disabled beginning March 9, 2012 through January 29, 2013.

       Furthermore, because the evidence supported the commission’s finding that claimant was

totally disabled; claimant did not have a duty to market his residual capacity. A.G. Van Metre,

Jr., Inc. v. Gandy, 7 Va. App. 207, 216, 372 S.E.2d 198, 203 (1988).

       For the foregoing reasons, we affirm the commission’s decision in part, reverse in part,

and remand the case for entry of an appropriate award.


                                                                                  Affirmed in part,
                                                                                  reversed in part,
                                                                                    and remanded.




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