                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Senior Judge Duff


JON ROBIN DAVIS
                                             MEMORANDUM OPINION*
v.   Record No. 1674-00-3                         PER CURIAM
                                              NOVEMBER 14, 2000
SHADE EQUIPMENT COMPANY, INC. AND
 FEDERATED MUTUAL INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (A. Thomas Lane, Jr., on brief), for
             appellant.

             (Robert M. McAdam; Jones & Glenn, P.L.C., on
             brief), for appellees.


     Jon Robin Davis contends that the Workers' Compensation

Commission erred in finding he failed to prove that he was

totally disabled from employment after December 1, 1999.        Upon

reviewing the record and the briefs of the parties, we conclude

that this appeal is without merit.     Accordingly, we summarily

affirm the commission's decision.     See 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).        So

viewed, the evidence proved Davis sustained a compensable left

knee injury on September 27, 1999, while working for employer.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Dr. Rick Stough reported that Davis had sustained no disability

from work as a result of the accident.   A work status report

indicated, however, that Davis could "resume light-duties" on

September 27, 1999 through October 1, 1999, with limited use of

his legs.   Although Davis was to have a follow-up visit on

October 1, 1999, the record contains no evidence he did so.

     Davis testified that when he returned to work after the

September 27, 1999 accident, he presented his light-duty

restrictions to employer.   His employer did not have any

light-duty work and told Davis to do the best he could.     On

October 20, 1999, Davis quit his job.    Davis testified that his

knee was hurting that day and that John Kerns, employer's branch

manager, made a comment that upset Davis and caused him to

believe that employer was not concerned about his knee injury.

     Kerns testified that when Davis returned to work after the

accident, he told Davis to do what he felt he could do and that

others in the shop would assist him if necessary.    Kerns also

told Davis to let him know of any problems.   Davis performed all

of his job duties up until October 20, 1999 and never reported

to Kerns that he could not perform his job duties.

     On November 10, 1999, Davis was examined by Dr. Stephen H.

Martenson, an orthopedic surgeon.   Dr. Martenson noted that

Davis had been released to light duty and quit his job when his

employer required him to work on a ladder.    Dr. Martenson



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diagnosed "left knee strain with probable ACL tear; rule out

lateral meniscal tear, persistent loss of motion and swelling."

Dr. Martenson limited Davis to sedentary work "until the

diagnosis is clear and treatment is instituted appropriately"

and indicated that the sedentary work restriction would remain

in effect until December 8, 1999.

     On December 1, 1999, Dr. Martenson reviewed Davis' MRI

results, which showed a posterior horn medial meniscal tear and

popliteal cyst formation.   Dr. Martenson recommended that Davis

undergo arthroscopic partial medial meniscectomy and noted that

Davis "continues off work and an estimate would be three to six

weeks postop to return to any kind of laboring type work if a

sitting job is not available."    Dr. Martenson recommended "no

work until reevaluated" and indicated that surgery had been

scheduled for December 14, 1999.    Dr. Martenson noted that

Davis' surgery had been cancelled due to his workers'

compensation claim being contested.

     Dr. Hetzel Hartley reviewed Davis' medical records upon

employer's request.   Dr. Hartley reported that he agreed with

Dr. Martenson's November 10, 1999 note finding Davis capable of

sedentary work.   Dr. Hartley defined sedentary work as work in a

seated position with no stair climbing, no prolonged standing or

walking for more than ten minutes each hour, and no walking on

uneven ground.



                                 - 3 -
     On appeal, Davis contends that Dr. Martenson removed him

from work as of December 1, 1999, and, therefore, he was

entitled to an award of temporary total disability benefits as

of that date.   In addressing this issue, the commission found as

follows:

           [W]e note that [Davis] returned to work and
           was able to perform his regular work. The
           employer provided [Davis] with the
           opportunity to perform only the work he felt
           capable of doing. [Davis] made no
           complaints or indicated any difficulty in
           performing his work. He unilaterally,
           without any medical documentation, elected
           to quit work on October 20, 1999. [Davis]
           has made no effort to market his remaining
           capacity since that time. While we note
           that Dr. Martenson on December 1, 1999, took
           [Davis] out of work, this was done in
           anticipation of his surgery on December 14,
           1999. There is no evidence [Davis']
           condition worsened such that he was no
           longer able to perform light duty work. It
           appears that Dr. Martenson was under the
           mistaken impression that the employer was
           not willing to work within [Davis']
           restrictions. [Davis] made no effort to
           return to the employer to determine if there
           was sedentary work available. [Davis] also
           made no effort to secure work from other
           employers. [Davis] described his
           limitations as being unable to bend and
           crawl like before the accident. However
           [Davis] was able to perform his work and the
           employer was willing to accommodate his
           needs. [Davis] provided no testimony of
           being totally disabled at this point. We
           note [Davis'] testimony that he did not need
           a cane or wheelchair. . . . In the absence
           of any statement from Dr. Martenson
           indicating that [Davis] was taken off work
           for any reason other than the fact that he
           was already not working and surgery was
           anticipated, we cannot find that [Davis] has
           borne his burden of proof.

                               - 4 -
        Based upon Kerns' testimony, the commission, as fact

finder, could reasonably conclude that employer provided Davis

with work within his restrictions after his accident, that Davis

was capable of performing that work, and that Davis quit his

employment on October 20, 1999 for reasons unrelated to his

injury.    Furthermore, based upon Dr. Martenson's records and

letters, the commission could find that Dr. Martenson excused

Davis from work after December 1, 1999, not because Davis was

totally disabled from all employment, but rather, because Davis

was already not working and was scheduled for surgery on

December 14, 1999.    Nothing in Dr. Martenson's records

established that Davis' condition worsened to the point that he

could not perform light-duty or sedentary work as of December 1,

1999.    Furthermore, nothing in Dr. Martenson's records proved

that he removed Davis from work as of December 1, 1999, because

Davis was no longer capable of performing light duty or

sedentary work.    "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).

        Based upon this record, we cannot find as a matter of law

that Davis proved he was totally disabled as of December 1,

1999.     See Tomko v. Michael's Plastering, Co., 210 Va. 697, 699,

173 S.E.2d 833, 835 (1970).    Therefore, in the absence of any



                                 - 5 -
evidence that Davis marketed his residual work capacity after

that date, we must affirm the commission's decision.

                                                        Affirmed.




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