                    COURT OF APPEALS OF VIRGINIA


Present:   Chief Judge Fitzpatrick, Judges Frank and Clements


GENE LEIGHTON SMELCER
                                            MEMORANDUM OPINION*
v.   Record No. 1344-03-3                        PER CURIAM
                                             SEPTEMBER 23, 2003
DICKENSON COUNTY SCHOOL BOARD AND
 TENNESSEE INSURANCE GUARANTY ASSOCIATION
 ON BEHALF OF RELIANCE INSURANCE COMPANY


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (P. Heith Reynolds; Wolfe, Williams &
           Rutherford, on brief), for appellant.

           (J. Jason Eige; Penn, Stuart & Eskridge, on
           brief), for appellees.


     Gene Leighton Smelcer (claimant) contends the Workers'

Compensation Commission erred in finding he failed to prove that

he was entitled to (1) a de facto award of benefits for the

period from May 4, 2000 through August 13, 2000; and

(2) disability benefits after June 4, 2000.    Upon reviewing the

record and the parties' briefs, 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).


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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.   See Tomko v. Michael's

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

                          De Facto Award

               [W]here the employer has stipulated to
          the compensability of the claim, has made
          payments to the employee for some
          significant period of time without filing a
          memorandum of agreement, and fails to
          contest the compensability of the injury, it
          is "reasonable to infer that the parties
          ha[ve] reached an agreement as to the
          payment of compensation," and a de facto
          award will be recognized.

Ryan's Family Steak Houses v. Gowan, 32 Va. App. 459, 463, 528

S.E.2d 720, 722 (2000).

     In denying claimant a de facto award, the commission found

as follows:

               We do not find that the payment of wage
          benefits for approximately 14 1/2 weeks is
          sufficient to warrant the entry of a de
          facto award in this case. There is no
          evidence to suggest that the employer ever
          advised the claimant that it had accepted
          his claim. Moreover, the employer contested
          the compensability of his injury at the
          Hearing.

     Here, employer did not stipulate to the compensability of

the claim; did not make payments to claimant for a significant

period of time; and contested the compensability of claimant's

claim at the hearing.   Based upon this record, the commission,

as fact finder, could reasonably infer that the parties had not

                              - 2 -
reached an agreement as to compensation.   Accordingly, we cannot

find as a matter of law that claimant proved he was entitled to

a de facto award.

             Disability Benefits after June 4, 2000

     In denying claimant's claim for disability benefits after

June 4, 2000, the commission found as follows:

          It is the claimant's burden to prove that
          his disability prevents him from performing
          his pre-injury employment. The medical
          record clearly reflects that on June 7,
          2000, Dr. [Thomas L.] Huddleston released
          the claimant to sedentary work. These
          restrictions stayed in place until July 31,
          2000, at which time he was restricted only
          from squatting. However, there is no
          opinion from any physician that the claimant
          was unable to perform the requirements of
          his pre-injury teaching job. Therefore, he
          is not entitled to temporary total
          disability benefits from June 5 through
          August 13, 2000.

               The claimant also seeks temporary
          partial disability benefits from January 1
          through August 1, 2001; temporary total
          disability benefits from September 1 through
          December 1, 2001; temporary partial
          disability benefits from December 2 through
          December 30, 2001; and temporary total
          disability benefits from January 1, 2002,
          and continuing, based on his restrictions of
          no working more than four days a week; no
          squatting, kneeling, or climbing; and no
          standing or walking over two hours a day.
          However, there is no evidence to show how
          many days he worked in his pre-injury
          employment. Without evidence of the scope
          of the claimant's pre-injury job duties, we
          are precluded from finding disability for
          any period after June 4, 2000.



                             - 3 -
     In light of the absence of any medical evidence indicating

that claimant's restrictions prevented him from returning to

perform all aspects of his pre-injury work as a music teacher,

coupled with evidence that he worked for a period of time as a

music teacher for another school system while under those

restrictions, we cannot find as a matter of law that claimant's

evidence sustained his burden of proving he was entitled to an

award of disability benefits after June 4, 2000 and continuing.1

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




     1
       We did not consider claimant's deposition testimony
because it was not properly entered into the record before the
commission. The commission declined to consider the deposition
in rendering its decision because neither party requested that
it be made a part of the record.

                             - 4 -
