                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


TRADESMEN INTERNATIONAL, INC. AND
 LUMBERMEN'S UNDERWRITING ALLIANCE
                                        MEMORANDUM OPINION* BY
v.   Record No. 1726-01-4               JUDGE NELSON T. OVERTON
                                            MARCH 19, 2002
GARY T. COX


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Scott C. Ford (McCandlish Kaine, P.C., on
          brief), for appellants.

          No brief or argument for appellee.


     Tradesmen International, Inc., and its insurer (hereinafter

referred to as "employer") contend the Workers' Compensation

Commission ("commission") unreasonably interpreted Rule 1.4(C)

when it dismissed employer's July 31, 2000 application and

required benefits payments until a successive application was

filed on January 3, 2001.   Finding no error, we affirm the

commission's decision.

     Gary T. Cox ("claimant") suffered a compensable injury – a

hernia – on April 24, 2000.   Upon examining claimant on May 1,

2000, Dr. Ronald Kurstin found that claimant had a right

inguinal bulge that "occurred after working on the job," and


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
also noted that claimant complained of "arm pain on the right

near the elbow, which occurred at similar type of activity."

Dr. Kurstin noted the following recommendation:    "Giving him

enough time to recuperate from his arm, I would plan on doing

him around the first week in June."   Dr. Kurstin performed

claimant's surgery on June 6, 2000, and on June 16, 2000,

completed a work restriction form indicating that claimant was

not to return to construction work for "at least 4 weeks."

     On July 26, 2000, Dr. Kurstin completed a "questionnaire"

concerning claimant's scheduling of his surgery.   Dr. Kurstin

indicated that he could have performed the surgery promptly

after claimant's May 1, 2000 office visit, but that claimant

"delayed his surgery until June 6, 2000, because of unrelated

elbow complaints."   The word "unrelated" was then marked through

and initialed by Dr. Kurstin.   Dr. Kurstin indicated that

because of claimant's elbow problem, he did not agree that

claimant could have returned to work sooner had the surgery been

performed sooner.

     On July 31, 2000, employer filed an application to

terminate benefits as of May 1, 2000, based on claimant's

alleged refusal of medical treatment by unnecessarily postponing

recommended surgery.

     Claimant was released to pre-injury work on August 7, 2000.

On January 3, 2001, the commission received a second application



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from employer alleging that Dr. Kurstin released claimant to

pre-injury work as of August 7, 2000.   Employer clarified that

the application was a "successive" application and alleged that

benefits were last paid through July 17, 2000.

     When a challenge is made to the commission's construction

of its rules, "our review is limited to a determination whether

the commission's interpretation was reasonable."    Classic

Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761, 763

(1989).   Under Commission Rule 1.4(C)(2), compensation shall be

paid through the date the application was filed unless the

application alleges refusal of medical treatment, in which case

the payment "shall be made to the date of the refusal or 14 days

before filing, whichever is later."    Commission Rule 1.4(C)(4)

states that compensation shall be paid through the date the

application was filed unless "[a]n employer files successive

applications, in which case compensation shall be paid through

the date required by the first application.   If the first

application is rejected, payment shall be made through the date

required by the second application."

     Claimant underwent the recommended surgery on June 6, 2000;

employer's first application was filed on July 31, 2000.      At the

hearing on this application, held on January 29, 2001, the

deputy commissioner dismissed the application because any

refusal by claimant to undergo the recommended medical treatment



                                -3-
was "cured" by the June 6, 2000 surgery, well before the

application was filed.   Therefore, employer failed to show

refusal of medical treatment, and the deputy commissioner did

not err in dismissing the first application.

     After dismissing the first application, the deputy

commissioner considered employer's second application.    Under

these circumstances, Rule 1.4(C) requires payment to be made

through the date the second application is filed.   Employer's

argument that Rule 1.4(C)(4) technically applies to "rejected"

first applications as opposed to "dismissed" first applications

is misplaced.   See Day v. Shenandoah Fiberglass Prods. Co.,

Inc., 70 O.I.C. 73, 74-75 (1991) ("If the first application had

been dismissed, the employer would have had to pay benefits to

the date the second application was filed.").   The commission

did not err in applying Rule 1.4(C)(4) to require employer to

make payments until the second application was filed on January

3, 2001.

     The commission's interpretation of its rules was reasonable.

Accordingly, we affirm the decision of the commission.

                                                          Affirmed.




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