                    COURT OF APPEALS OF VIRGINIA

Present:   Judges Fitzpatrick, Overton and Senior Judge Duff


CARLOS A. REAL
                                          MEMORANDUM OPINION * BY
v.   Record No. 2859-96-4                    CHARLES H. DUFF
                                              JULY 29, 1997
TOWER ELECTRIC COMPANY,
 LMI INSURANCE COMPANY,
 CANOVA ELECTRICAL CONTRACTING, INC.
 AND ROYAL INSURANCE COMPANY OF AMERICA


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Herman M. Sawyer, Jr., on brief), for
           appellant. Appellant submitting on brief.

           (Cathie W. Howard; Pierce & Howard, P.C., on
           brief), for appellee LMI Insurance Company.
           Appellee submitting on brief.

           (Benjamin J. Trichilo; Trichilo, Bancroft,
           McGavin, Horvath & Judkins, P.C., on brief),
           for appellees Canova Electrical Contracting,
           Inc. and Royal Insurance Company of America.
            Appellees submitting on brief.

           No brief for appellee Tower Electric Company.



     Carlos A. Real appeals a decision of the Workers'

Compensation Commission (commission) awarding him temporary total

disability benefits from June 21, 1994 through July 26, 1994.

Real contends that the commission erred in finding that he failed

to prove he was totally disabled after July 26, 1994 as a result

of his compensable June 21, 1994 injury by accident.   Finding no

error, we affirm the commission's decision.

     On appeal, we view the evidence in the light most favorable
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the prevailing party below.    See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence proved that on June 21, 1994, while

working for Tower Electric Company (Tower) as an electrician,

Real lost his balance and fell from a ladder, landing on the

corner of a table.   An ambulance transported him to the

Alexandria Hospital, where he came under the care of Dr. Miguel

H. Gonzalez, a thoracic and cardiovascular surgeon.
     On June 21, 1994, Dr. Gonzalez performed a closed left

thoracostomy to reinflate Real's left lung.   On June 24, 1994,

Dr. Gonzalez discharged Real from the hospital with final

diagnoses of traumatic left pneumothorax (i.e., a lung puncture),

posterior rib fractures, and mild hemothorax.   On July 26, 1994,

Dr. Gonzalez noted "good healing of the 9th and 10th left ribs."

On that date, Dr. Gonzalez opined that "[f]rom the chest injury

point of view, [Real] should be able to return to a full workload

at this point."   Because Real complained of dizziness, weakness

in both arms, and left arm pain, Dr. Gonzalez referred him to a

neurologist for evaluation.   However, between July 27, 1994 and

October 5, 1994, Real did not seek any medical treatment.

     On October 6, 1994, Dr. Leo Van Herpe, an orthopedic

surgeon, examined Real.   Dr. Van Herpe noted Real's persistent

complaints of pain, but he also noted that Real made a minimal

effort during the respiratory examination.    Dr. Van Herpe

recommended a respiratory evaluation, the results of which showed



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normal pulmonary functioning.   On October 19, 1994, Dr. Van Herpe

wrote to Vik Brothers Insurance Group and recommended, pending

the insurance company's approval, that Real undergo vocational

rehabilitation in order "to get him active and back to work." 1

Real did not seek medical treatment between October 12, 1994 and

February 12, 1995.

     On November 29, 1994, responding to Real's counsel's

question regarding Real's specific dates of disability, Dr. Van

Herpe stated that "[t]he beginning date would indeed be the date

of his accident.   The ending date would be his discharge from

vocational rehabilitation or a date selected by me after

reviewing his progress or lack of same in his rehabilitation

program."
     On February 13, 1995, Real returned to Dr. Van Herpe.     Dr.

Van Herpe noted that Real had not been to a work hardening

program, nor had he resumed working.   Dr. Van Herpe reported that

Real's "physical examination shows a pain response out of

proportion to the physical findings and no evidence of any

significant persistent organic problem."   Dr. Van Herpe

recommended that Real "should be put through a work-hardening

program and returned to the work force."   Dr. Van Herpe

recommended against any further medical treatment.

     In his July 25, 1995 deposition, Dr. Van Herpe stated that,
     1
      In his deposition, Dr. Van Herpe testified that he used the
term "vocational rehabilitation," but that he meant "work
hardening."



                                -3-
when he saw Real on October 6, 1994, from an orthopedic

standpoint, he placed no restriction on Real's ability to return

to his pre-injury work as an electrician.    He noted that Real

made no complaints of weakness or dizziness on October 6, 1994.

Dr. Van Herpe testified that Real's October 6, 1994 complaints

were not supported by objective testing, which showed Real's lung

functioning was within normal limits.   He testified that he

indicated to Real that Real could perform his pre-injury job, and

that the only reason he recommended that Real undergo a work

hardening program was due to Real's reluctance to get back into

the work force.   Dr. Van Herpe opined that Real "was capable of

doing his normal job with no restrictions from the time I first

met him."   Dr. Van Herpe recommended work hardening solely to

show Real that he was capable of performing his job, due to

Real's fears of going back to work, not because of any orthopedic

restrictions.   Dr. Van Herpe noted that at all times, Real seemed

resistant to returning to any type of work.   He testified that if

Real had not been recalcitrant about going back to work, Real

could have done so without work hardening.    As of the date of the

deposition, Dr. Van Herpe no longer recommended work hardening,

and he opined that Real should be back at work.   Dr. Van Herpe

denied ever telling Real that he could not go back to work until

after he went through a work hardening program.   Rather, he told

Real that he could perform his pre-injury job.
     Real testified that he did not start work hardening because




                                -4-
he was never contacted by Dr. Van Herpe with an authorization

from the insurance company.   Real has not returned to any type of

gainful employment since the accident.

     Based upon this record, the commission found that Real did

not prove continuing total disability after July 26, 1994.    The

commission relied upon Dr. Van Herpe's deposition testimony.

Unless we can say as a matter of law that Real's evidence proved

he remained totally disabled after July 26, 1994 as a result of

his compensable injury by accident, 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).

     The commission's decision is supported by the medical

records of Dr. Gonzalez and the medical records and testimony of

Dr. Van Herpe.   It is uncontradicted that, from the standpoint of

Real's chest injuries sustained as a result of his compensable

accident, Dr. Gonzalez released Real to return to his pre-injury

work on July 26, 1994.   With respect to Real's July 26, 1994

complaints of dizziness and weakness, he chose not to seek

further medical treatment for these complaints, and no evidence

causally linked these complaints to his compensable injuries.      In

addition, when Real first saw Dr. Van Herpe on October 6, 1994,

he made no complaints of dizziness or weakness.    On that date,

Dr. Van Herpe found no objective evidence to support Real's

complaints of being unable to breathe.    In his deposition, Dr.

Van Herpe testified unequivocally that Real was able to perform



                                  -5-
his pre-injury work from the first time he examined Real, and

that he told Real that he could perform his pre-injury job.    The

commission was entitled to conclude, based upon Dr. Van Herpe's

testimony, that his suggestion that Real undergo work hardening

was necessitated by Real's refusing to go back to work, and not

by any actual disability related to Real's compensable injury by

accident.

     For these reasons, we cannot find as a matter of law that

Real's evidence sustained his burden of proving total disability

after July 26, 1994.   Accordingly, we affirm the commission's

decision.

                                                   Affirmed.




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