                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, O’Brien and Senior Judge Bumgardner
UNPUBLISHED



              HOWARD CLUTE
                                                                              MEMORANDUM OPINION*
              v.     Record No. 0252-15-2                                         PER CURIAM
                                                                                  JUNE 9, 2015
              BIG LOTS STORES, INC. AND
               ARCH INSURANCE COMPANY


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               (Michael J. Beste; Reinhardt Harper Davis, PLC, on brief), for
                               appellant.

                               (Nicholas P. Marrone; Kathryn Lea Harman; Semmes, Bowen &
                               Semmes, on brief), for appellees.


                     Howard Clute (“claimant”) appeals the decision of the Workers’ Compensation

              Commission (“commission”) declining to award him disability benefits from August 19, 2013

              and ongoing and by only awarding him disability benefits on August 19, 2013, which was the

              day of his right knee replacement surgery. On appeal, claimant argues the commission

              erroneously (1) held that he failed to sustain his burden of proof for an award of temporary total

              disability from August 19, 2013 and ongoing; and (2) declined to consider his testimony to prove

              his disability, but instead determined that it could only speculate as to a period of disability

              without medical records.1 We have reviewed the record and the commission’s opinion and find



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        Big Lots Stores, Inc. and Arch Insurance Company argue claimant was not entitled to
              disability benefits for his right knee on August 19, 2013 because that claim was barred by the
              doctrine of res judicata. We have determined that the commission did not err in finding that
              claimant’s claim for benefits for his right knee was not barred by res judicata. See Big Lots
              Stores, Inc. v. Clute, Record No. 0206-15-2.
that this appeal is without merit. Accordingly, we affirm for the reasons stated by the

commission in its opinion. See Clute v. Big Lots Stores, Inc., JCN VA00000420654 (Jan. 14,

2015). We dispense with oral argument and summarily affirm because the facts and legal

contentions are adequately presented in the materials before the Court and argument would not

aid the decisional process. See Code § 17.1-403; Rule 5A:27.

                                                                                          Affirmed.




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