                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Haley
Argued at Chesapeake Virginia


GERALD RICKY DOUGHTY
                                                               MEMORANDUM OPINION* BY
v.     Record No. 0011-05-1                                     JUDGE ROBERT P. FRANK
                                                                   OCTOBER 25, 2005
THE CAR STORE AND
 PENINSULA INSURANCE COMPANY


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Daniel Hartnett (Ayers & Hartnett, P.C., on briefs), for appellant.

                 S. Vernon Priddy III (Sands Anderson Marks & Miller, on brief), for
                 appellee.


       Gerald Ricky Doughty, claimant, appeals the commission’s opinion that found claimant’s

total disability ended on November 24, 2003. He contends the medical evidence does not

support such a finding. For the reasons stated, we affirm the commission’s opinion.

       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).

“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. To the contrary, a party seeking

compensation bears the burden of proving his disability and the periods of that disability.”

Marshall Erdman & Assocs. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149-50 (1997)

(citation omitted). Like a finding of causation, the commission’s determinations regarding the

nature and duration of a claimant’s disability also are findings of fact. Thus, unless we can say


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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).

       On review, the full commission found claimant did not prove a continuing disability after

November 24, 2003 concluding:

               In the last note we have from Dr. Bird, he specifically stated that
               the claimant was totally incapacitated from August 23, 2002, to
               November 24, 2003. He also did not check any of the boxes
               pertaining to release to work, as noted by the Deputy
               Commissioner, but we cannot ignore the fact that he expressly
               authorized total disability for a definite period of time ending
               November 24, 2003. Moreover, we have no treatment notes
               associated with the November 24, 2003, visit that would shed light
               on the claimant’s current condition. Notably, before November 24,
               2003, the claimant had not seen Dr. Bird since April 29, 2003, and
               had missed two appointments. We conclude that Dr. Bird’s last
               note does not authorize disability beyond November 24, 2003, and
               there is no current medical evidence supporting a finding that the
               claimant continues to suffer from a totally incapacitating condition
               related to the accident.

       Claimant contends the commission erred in not extending his disability past November

24, 2003. Conceding Dr. Bird opined his disability was from August 23, 2002, to November 24,

2003, claimant nevertheless maintains the doctor did not say the disability ended November 24,

2003. Relying on his own testimony, claimant argues Dr. Bird indicated follow-up appointments

and continued treatment and that Dr. Bird did not, in the November 24, 2003 “Disability

Certificate,” return claimant to work. Essentially, claimant argues the commission

misinterpreted Dr. Bird’s certificate. This argument ignores our standard of review.

       Here, the commission accepted Dr. Bird’s statement that claimant’s disability ended

November 24, 2003. The commission rejected claimant’s testimony that he was unable to work

and that he was still being treated by Dr. Bird. The commission determined no medical evidence

supported a finding that claimant was disabled beyond November 24, 2003.


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       Accordingly, based upon this record, we cannot find as a matter of law that claimant’s

evidence sustained his burden of proving causally related disability after November 24, 2003.

We, therefore, affirm the commission’s opinion.

                                                                                 Affirmed.




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