                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Felton and Senior Judge Willis


RONALD NATHANIEL SAWYER
                                             MEMORANDUM OPINION*
v.   Record No. 0556-03-1                         PER CURIAM
                                                 JULY 1, 2003
WORK CLOTHES WAREHOUSE, INC. AND
 UNINSURED EMPLOYER'S FUND


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Matthew H. Kraft; Rutter, Walsh, Mills &
             Rutter, L.L.P., on brief), for appellant.

             (Benjamin M. Mason; Mason, Mason, Walker &
             Hedrick, P.C., on brief), for appellee Work
             Clothes Warehouse, Inc.

             (Jerry W. Kilgore, Attorney General; John J.
             Beall, Jr., Senior Assistant Attorney
             General; James Webb Jones, Assistant Attorney
             General, on brief), for appellee Uninsured
             Employer's Fund.


     Ronald Nathaniel Sawyer (claimant) contends the Workers'

Compensation Commission erred in finding that he failed to prove

that he was entitled to an award of temporary total disability

(TTD) benefits as a result of his compensable July 25, 1997

injury by accident for the periods from (1) July 25, 1997

through August 5, 1997; 1 (2) August 19, 1997 through October 1,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Although claimant referred to the time period from January
25, 1997 through August 5, 1997 in his first question presented,
it is clear based upon the date of his compensable accident, the
1997; and (3) November 5, 2001 and continuing.    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).

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).

     In denying claimant's application for an award of TTD

benefits for the time periods alleged, the commission found as

follows:

           For the first claimed period from July 25 to
           August 6, 1997, we find no medical evidence
           of total disability. Although the claimant
           testified that he did not work from July 25
           to August 5, 1997, there is no supporting
           medical report.

                Regarding the second claimed period
           from August 19 to October 1, 1997, the
           medical evidence shows that Dr. [Anthony T.]
           Carter issued a slip on August 19, 1997,
           excusing the claimant from work. Dr. Carter
           then released the claimant to light duty on
           September 9, 1997. The employer presented
           evidence suggesting that he worked and
           earned income during this claimed period,

content of the record, and the argument section of claimant's
brief, that the correct time period in question was from July
25, 1997 through August 5, 1997.

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          and the claimant offered contradictory
          testimony regarding his work efforts during
          this period. We find that the evidence of
          disability for this period is insufficient.

           *      *      *      *      *      *       *

               Finally, the claimant alleges temporary
          total disability beginning November 5, 2001,
          relying on Dr. [Frank W.] Gwathmey's letter
          report and the VEC forms completed by
          Dr. Carter and Dr. Gwathmey. We do not
          accept the VEC forms as persuasive evidence
          of disability in this case. Dr. Carter
          signed the form on December 14, 2001,
          indicating that the claimant was currently
          unable to work. However, there are no
          contemporaneous treatment records to support
          his opinion. Dr. Gwathmey indicated on the
          VEC form that the claimant was totally
          unable to work from July 25, 1997, to the
          present. This response clearly fails to
          comport with the work history and treatment
          records after the accident. The claimant
          worked at various times, and in fact, was
          released to work by Dr. Carter on several
          occasions following the injury.

                Dr. Gwathmey's letter is similarly
          unpersuasive. To the extent that the
          language in the letter can be interpreted to
          excuse the claimant from work as a result of
          the work injury, we find that the opinion is
          based on an incomplete and inaccurate
          history. We also find Dr. Gwathmey's
          opinion undermined by his attempt to render
          an opinion on the VEC form regarding the
          claimant's work ability since 1997, despite
          the fact that he first evaluated him in
          2001.

               July 25, 1997 Through August 5, 1997

     Although claimant testified that he could not work during

this time period due to his right wrist fracture sustained on

July 25, 1997, there is no medical evidence in the record to


                              - 3 -
establish that Dr. Carter, the treating physician, removed

claimant from work during that period of time.    In fact,

Dr. Carter's medical records establish that he permitted

claimant to perform light-duty work as of August 6, 1997.     There

is no indication in the medical records that claimant could not

have performed light-duty work from July 26, 1997 through

August 5, 1997.

     Based upon the lack of any medical evidence supporting

total disability from work during the period from July 25, 1997

through August 5, 1997, we cannot find as a matter of law that

claimant's evidence sustained his burden of proving entitlement

to an award of TTD benefits for that period.

             August 19, 1997 Through October 1, 1997

     During the period from August 19, 1997 through October 1,

1997, Dr. Carter released claimant to light-duty work on

September 9, 1997.   Claimant admitted he worked "about a week or

two" during that time period.   However, employer's evidence

contradicted claimant's testimony.   Employer's evidence

established that claimant worked on August 20, 1997; that he

earned $115.00 for the week ending August 23, 1997; that he

earned $360.00 for the week ending September 13, 1997; that he

earned $227.50 for the week ending September 20, 1997; that he

earned $335.00 for the week ending September 27, 1997; and that

he earned $55.00 for September 28 and 29, 1997.   Moreover,

employer's former owner, James Carneal, testified that the only
                              - 4 -
reason claimant did not earn income during the weeks ending

August 30, 1997 and September 6, 1997, was because he chose not

to work.   Carneal testified that work waiting on customers was

available for claimant during that time and that it was offered

to him.

     Based upon the contradictory evidence in the record

regarding claimant's work history during the period from

August 19, 1997 through October 1, 1997 and the commission's

role as fact finder in evaluating the credibility of the

witnesses, we cannot find as a matter of law that claimant

sustained his burden of proving he was entitled to an award of

TTD benefits from August 19, 1997 through October 1, 1997.

                  November 5, 2001 and Continuing

     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991).   As fact finder, the commission weighed

the medical evidence and rejected the opinions of Dr. Gwathmey

and Carter with respect to claimant's claim of total disability

from November 5, 2001 and continuing.   The commission noted that

there were no contemporaneous medical reports to support

Dr. Carter's December 14, 2001 VEC form, that there were

contradictions between the VEC form and letter completed by

Dr. Gwathmey and the claimant's known work history and treatment

records after the accident, and that although Dr. Gwathmey did
                              - 5 -
not evaluate claimant for the first time until 2001, he rendered

an opinion as to claimant's work ability since 1997.   In light

of these considerations, the commission, as fact finder, was

entitled to give little probative weight to the opinions of

Drs. Carter and Gwathmey.   Accordingly, absent any persuasive

medical opinions supporting claimant's assertion of total

disability from November 5, 2001 and continuing, we cannot find

as a matter of law that claimant's evidence sustained his burden

of proof.

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

                                                         Affirmed.




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