                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


LIZ’S BLUE DIAMOND, INC. AND
 VIRGINIA HOSPITALITY GROUP
 SELF-INSURANCE ASSOCIATION
                                          MEMORANDUM OPINION* BY
v.   Record No. 1943-98-1                JUDGE SAM W. COLEMAN III
                                               JUNE 1, 1999
JOSEPH E. RICO


        FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

          Bradford C. Jacob (Taylor & Walker, P.C., on
          brief), for appellants.

          Keith Loren Kimball for appellee.


     In this appeal from the Workers’ Compensation Commission, we

determine whether the commission erred by refusing to terminate

benefits based on the employer’s proof that claimant’s incapacity

to perform his pre-injury work is unrelated to his work injury.

The employer concedes that claimant sustained a compensable injury

rendering claimant temporarily totally disabled.   Based on medical

reports, however, the employer now argues that claimant’s

continuing total disability results from medical conditions

unrelated to the compensable injury.   We find that the commission

did not err in holding that employer did not bear its burden to

prove that claimant’s disability was wholly attributable to


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
medical conditions unrelated to the industrial accident.

Accordingly, we affirm the commission.

                            BACKGROUND

     In 1993, Joseph Rico sustained compensable injuries to his

neck, back, and left shoulder while employed as a

bartender-manager for Liz’s Blue Diamond.   The commission

entered an award for temporary total disability at the rate of

$108.50 per week.

     In November of 1993, Dr. Markham restricted Rico to no more

than four hours of work and no lifting or carrying objects more

than two to three pounds.   Dr. Markham noted that Rico suffered

from chronic hepatitis C.   Until 1996, Rico sought treatment

from his family doctor.   In 1996, Rico returned to Dr. Markham

complaining of pain at the base of the neck and in the upper

thoracic spine.   Dr. Markham referred Rico to physiatrist Lisa

B. Barr, M.D.

     Dr. Barr noted that chronic active hepatitis and chronic

obstructive pulmonary disease placed additional stress on Rico’s

neck muscles.   She further opined that “if he were in fact

disabled from gainful employment, it would be on the basis of

his underlying medical conditions and not due to any permanent

residual from his alleged fall."

     A functional capacities evaluation (FCE) performed on

June 7, 1996, revealed that Rico could safely be released to the

“sedentary-light physical demand level.”    The FCE caused Dr.

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Barr to further note that it was “difficult to determine to what

extent his [unrelated] medical conditions [were] affecting his

lifting capacities.”   In reviewing the FCE, Dr. Barr concluded

that at a minimum, Rico could perform sedentary light work.

Limiting her analysis solely to Rico’s work-related injury, Dr.

Barr believed that Rico’s “work-related cervical thoracic strain

injury [was] permanent and stable.”    According to Dr. Barr,

Rico’s condition had stabilized and his functional disability

rated a “6% whole person impairment.”   She concluded, based on

her assessment of The Dictionary of Occupational Titles, that

Rico could perform a bartending job with certain limitations.

He could not lift more than fifteen pounds occasionally, and he

could not perform repetitive or sustained overhead activities.

Dr. Barr also opined that Rico’s unrelated medical conditions

would actually preclude him from returning to any gainful

employment.

     On March 11, 1997, Rico underwent another FCE.    On March

14, 1997, Dr. Barr stated that although Rico was totally

disabled from working, the initial FCE represented “what he

could be expected to do under optimal circumstances, assuming we

are not going to consider his significant non-Workers’

Compensation related medical conditions.”

     On September 15, 1997, Dr. Barr stated that Rico was

“clearly totally disabled from gainful employment and this total



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disability is largely based on his other underlying medical

problems.”

                             ANALYSIS

     Employer filed an application to terminate temporary total

disability benefits based on the claim that Rico’s current

disability was unrelated to his industrial accident.    When an

employer alleges a change in condition warranting termination of

an award, the burden is on the employer to prove the allegations

by a preponderance of the evidence.     See Pilot Freight Carriers,

Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572

(1986).   The commission found that employer failed to meet this

burden.   Because credible evidence supports the commission’s

finding, we affirm the decision.

     Although the evidence proves that Rico’s non-compensable

medical conditions substantially contribute to his total

disability, the evidence also supports the commission’s finding

that the compensable injury has resulted in a permanent six

percent whole person impairment and the employer failed to prove

that this impairment did not disable the claimant from his

pre-injury work.   Dr. Barr opined that this injury alone,

prohibited Rico from regularly lifting more than fifteen pounds

and from performing regular overhead tasks.

     The definition of disability is “whether the employee is

able fully to perform the duties of his pre-injury employment.”

Celanese Fibers v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687,

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690 (1985).    Employer did not provide a pre-injury job

description.   Therefore, the evidence was insufficient for the

commission to conclude and for this Court to hold as a matter of

law that, given the physical limitations arising from Rico’s

compensable injury, he could return to his pre-injury

employment.    Consequently, credible evidence supports the

commission’s holding that employer has not proved that Rico’s

disability is wholly unrelated to his compensable injury.

     Employer argues that American Furniture Co. v. Doane, 230

Va. 39, 334 S.E.2d 548 (1985), and Eppling v. Schultz Dining

Programs, 18 Va. App. 125, 442 S.E.2d 219 (1994), support its

position.   Those cases state that when an employer meets its

burden of proving that it offered a disabled claimant selective

employment within the claimant’s residual capacity, and the

claimant refuses the employment because of an unrelated physical

condition, then the claimant’s refusal is unjustified.     See

Doane, 230 Va. at 42, 334 S.E.2d 550; Eppling, 18 Va. App. at

127, 442 S.E.2d at 220.   Here, where employer has made no offer

of selective employment and has instead argued that the

disability is wholly unrelated to the industrial accident, those

cases lend no support.

     Employer argues that it could not have offered selective

employment to the claimant because a totally disabled claimant

is not required to participate or cooperate in job placement

efforts while totally disabled.   In support of its argument,

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employer cites the commission’s holding in Gardner v. Legum Home

Health, 74 O.I.C. 97 (1995), that an “employee has no obligation

to work with vocational rehabilitation until [he or] she is

medically released to return to selective employment.”   However,

whether claimant’s compensation benefits should be terminated

because he is unable to market his residual capacity due to

unrelated disabilities was not before the commission.

Therefore, the commission’s holding does not directly address

issues of selective employment or the duty to market residual

capacity, and we are not called upon to consider those issues on

appeal.

     Because the evidence supports the commission’s holding that

employer did not prove Rico’s disability was unrelated to his

compensable injury, we affirm the commission’s denial of

employer’s application for termination of benefits.

                                                           Affirmed.




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