                   COURT OF APPEALS OF VIRGINIA


Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia


JAMES M. BLAKER
                                          MEMORANDUM OPINION* BY
v.   Record No. 1010-99-1                 JUDGE NELSON T. OVERTON
                                               JUNE 6, 2000
PERRY'S HEATING, AIR AND ELECTRIC, INC.
and
HARTFORD CASUALTY INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          W. Mark Broadwell (Forbes & Broadwell, on
          brief), for appellant.

          F. Nash Bilisoly (Kelly O. Stokes;
          Vandeventer Black, L.L.P., on brief), for
          appellees.


     On appeal from a decision of the Workers' Compensation

Commission, James M. Blaker contends that the commission erred

in finding (1) that he unjustifiably refused to attend a medical

examination, as directed by Code § 65.2-607(A), scheduled on

July 15, 1997, (2) that Perry's Heating, Air and Electric, Inc.,

and its insurer did not engage in improper medical management by

scheduling the July 15, 1997 appointment, and (3) that Blaker

failed to adequately market his residual work capacity.    The

record supports the findings of the commission, and we affirm.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                           I.   Background

     On appeal, we view the evidence in the light most favorable

to the party prevailing below.     See Crisp v. Brown's Tysons

Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916

(1986).    The findings of the commission, if based on credible

evidence, are conclusive and binding on this Court.     See Morris

v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348

S.E.2d 876, 877 (1986).    "[W]e follow the settled rule that the

construction accorded a statute by public officials charged with

its administration is entitled to be given weight by the courts.

Indeed, this Court has said that the commission's construction

of the Workers' Compensation Act should be given 'great'

weight."    Bohle v. Henrico County School Board, 246 Va. 30, 35,

431 S.E.2d 36, 39 (1993) (citations omitted).

     Blaker, an electrician, suffered multiple injuries to his

mouth and neck while helping a co-worker on November 4, 1994.

The co-worker inadvertently struck Blaker in the face with a

hammer.    He received an award for those injuries from the

commission.   Perry's filed an application in July 1997 for a

hearing to terminate or suspend benefits based upon the grounds

that Blaker had returned to work and that he had failed to

attend a medical appointment with his treating physician.     After

the hearing was docketed, Blaker broke his leg in a

non-work-related injury.   He was released for work on January 7,



                                 - 2 -
1998, and filed an application for benefits as of January 8,

1998.

        Both applications were heard in a single hearing.   At the

hearing, Blaker admitted that he had returned to work for a

time, but defended against Perry's position by asserting that

Perry's had engaged in improper medical management with regards

to the July 1997 medical appointment.     The deputy commissioner

refused to rule on the issue of improper medical management.     He

found that Blaker had unjustifiably refused to attend the

appointment and that Blaker's refusal to seek employment outside

of his union constituted a failure to adequately market his

residual capacity.      The full commission affirmed.

                  II.   Refusal to Attend Examination

        Blaker contends that the commission erred in finding that

he refused to attend the July 15, 1997 medical appointment.     He

argues that he had no notice that the appointment was to be an

"independent medical examination" and, therefore, his attendance

was not mandatory under Code § 65.2-607.     Code § 65.2-607

provides, in relevant part:

                  A. After an injury and so long as he
             claims compensation, the employee, if so
             requested by his employer . . . , shall
             submit himself to examination, at reasonable
             times and places, by a duly qualified
             physician or surgeon designated and paid by
             the employer . . . .
                  B. If the employee refuses to submit
             himself to or in any way obstructs such
             examination requested by and provided for by
             the employer, his right to take or prosecute

                                  - 3 -
          any proceedings under this title shall be
          suspended until such refusal or objection
          ceases and no compensation shall at any time
          be payable for the period of suspension
          unless in the opinion of the Commission the
          circumstances justify the refusal or
          obstruction.

     Blaker admits that he received notice of the July 15, 1997

appointment.   He did not attend the appointment, nor did he

notify the employer, insurance company, or commission of his

reasons for refusing to attend the appointment.     Blaker argues

that Dr. Byrd was no longer his treating physician, and so the

appointment was improper medical management.      See infra.      The

fact that he did not consider Dr. Byrd to be his treating

physician any longer and that his course of treatment with Dr.

Byrd had ended, coupled with the contents of the notification

letter, support the commission's finding that Blaker was on

notice that the July 15, 1997 appointment was an examination

requested by the employer, and not an attempt by the employer to

force Blaker into a renewed course of treatment with Dr. Byrd.

                   III.   Improper Medical Management

     Blaker further argues that the July 15 appointment with Dr.

Byrd was improper medical management by Perry's.        For the

reasons stated above, the record supports the commission's

finding that the appointment was not a forced course of

treatment, but rather an examination requested by Perry's under

Code § 65.2-607.    Both parties admit that Dr. Byrd had not

anticipated seeing Blaker for further treatment, as Blaker had

                                  - 4 -
reached maximum medical improvement based on his decision to

treat the problem medically rather than surgically.       Nothing in

the record, aside from Blaker's conclusory allegations, supports

a finding that Perry's was attempting to force Blaker to use Dr.

Byrd as his treating physician and to renew treatment with him.

       IV.     Failure to Adequately Market Residual Capacity

     Blaker contends that the commission erred in finding that

he failed to market his residual capacity when seeking

employment.    Blaker joined a union after his injury and, once

released to light duty work, sought employment only through the

union channels.    Blaker argues that he was required to do this

or risk losing his status as a union member in good standing.

     A claimant who is released to light-duty work must prove

that he has made a reasonable effort to market his remaining

work capacity during any period for which benefits are sought.

See Washington Metro. Transit Auth. v. Harrison, 228 Va. 598,

601, 324 S.E.2d 654, 655 (1985).

                  In determining whether a claimant has
             made a reasonable effort to market his
             remaining work capacity, we view the
             evidence in the light most favorable to
             [Perry's], as [the employer] was the
             prevailing party before the commission.
             However, where there is no conflict in the
             evidence, as here, the question of the
             sufficiency of the evidence is one of law.

National Linen Service v. McGuinn, 8 Va. App. 267, 270, 380

S.E.2d 31, 32 (1989) (citations omitted).



                                 - 5 -
     Blaker has worked as an electrician since 1969.    At the

time of his compensable injury, he was working as an electrician

in a non-union job.   He joined the union of his own volition

after the injury, in June 1997.   Once released to light-duty

work, he confined his search for employment to those jobs

approved by the union; he telephoned the union employment "hot

line" a few times per week and visited the local union hall

every few weeks.

     This case is distinguishable from U.S. Air, Inc. v. Joyce,

27 Va. App. 184, 497 S.E.2d 904 (1998).   In Joyce, the employee

had worked for U.S. Air for seventeen years as a mechanic.     His

employment contract was under a union contract, which prohibited

employees from seeking work outside of U.S. Air.   After his

injury, Joyce could not return to his previous job, and so

requested a release from the employer to seek outside employment

without penalty of losing that union job.   U.S. Air refused.

     In Joyce's case, his very employment was tied to the union

contract.   The employer prohibited Joyce from seeking outside

employment and then argued that Joyce had refused to seek such

employment.   In Blaker's case, he joined the union of his own

choice, after the injury, and then argued that such choice

limited his employment options.   Under the facts and

circumstances of this case, we cannot say as a matter of law

that Blaker's evidence sustained his burden of proving that he



                               - 6 -
made a good faith, reasonable effort to market his residual work

capacity.

     The judgment of the commission is affirmed.

                                                       Affirmed.




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