                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


SUE ANN LANE
                                             MEMORANDUM OPINION*
v.   Record No. 2697-01-3                         PER CURIAM
                                                APRIL 2, 2002
ALCOA BUILDING PRODUCTS AND
 LIBERTY MUTUAL FIRE INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Thomas W. Dixon, Jr.; Nelson, McPherson,
             Summers & Santos, L.C., on brief), for
             appellant.

             (R. Ferrell Newman; Thompson, Smithers,
             Newman, Wade & Childress, on brief), for
             appellees.


     Sue Ann Lane (claimant) contends the Workers' Compensation

Commission erred in finding that she failed to prove she was

totally disabled after April 5, 1999 as a result of her March

16, 1993 compensable back injury and, therefore, she was

required to market her residual work capacity, which she failed

to do. 1   Upon reviewing the record and the parties' briefs, we



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Claimant did not appeal the commission's findings that she
did not suffer a new injury by accident on April 5, 1999 and
that any current disability was the result of her 1993
compensable injury by accident. In addition, claimant did not
challenge the commission's ruling that she unjustifiably refused
selective employment on April 5, 1999.
conclude that this appeal is without merit.    Accordingly, we

summarily affirm the commission's decision.    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).

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

sustained her burden of proof, 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).

     In granting employer's application and suspending

claimant's benefits as of April 5, 1999 based upon her failure

to cure her unjustified refusal of selective employment, the

commission found as follows:

          [C]laimant argues that the evidence shows
          she is entitled to temporary total
          disability benefits after the [sic] April 5,
          1999, because her disability rendered her
          incapable of any work. The claimant relies
          on her testimony and that of her husband
          regarding her condition even before this
          April 1999 incident. They testified that
          she was very limited in performing her
          household chores, had pain while sitting or
          standing, and was in constant pain during
          her one and one half years at Borg Warner
          when she did the light duty position.

               Significantly, the claimant testified
          that her condition was essentially the same
          before and after the April 1999 incident.
          The claimant was released to light duty
          work, and worked in that capacity after
          April 5, 1999. The medical evidence
          supports a finding that she was capable of
          this light duty work.

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               On April 5, 1999, the claimant was
          suspended for poor job performance. After
          April 5, 1999, the claimant sustained some
          disability from work, as indicated by the
          disability slips dated April 5, 1999 and
          April 13, 1999, but the medical records do
          not relate this disability to her 1993 work
          accident. Once her period of disability
          ended, which was after the suspension, the
          claimant failed to report to her selective
          employment, and she was terminated.

               The medical evidence does not indicate
          any disability from work after the April 13,
          1999 work slip until Dr. [William G.]
          Hatfield's May 5, 2000 letter to claimant's
          counsel. Dr. Hatfield did not treat the
          claimant between 1996 and May of 2000. In
          1997, Dr. Hatfield's partner, Dr. [Antonio
          E.] Valencia, returned the claimant to work.
          Other medical evidence and the claimant
          [sic] performance of light duty work
          supported this release for one and one half
          years. Moreover, as the Deputy Commissioner
          noted, no corresponding medical records
          support Dr. Hatfield's opinion that the
          claimant could perform no work and that this
          was related to her 1993 work injury. For
          these reasons, the Deputy Commissioner's
          finding that the claimant refused selective
          employment is affirmed.

               The claimant had a duty to market her
          residual capacity and secure employment in
          order to cure that refusal. The evidence
          shows that despite her residual capacity,
          the claimant has not cured her refusal. The
          claimant candidly admitted that she has not
          looked for work because she believes that
          she is incapable of work. The medical
          evidence contradicts her belief, and she had
          a duty to cure her refusal of selective
          employment.

     The commission's findings are amply supported by claimant's

testimony that her pain remained the same both before and after

the April 5, 1999 incident, her ability to perform the
                              - 3 -
light-duty job as a telephone operator for one and one-half

years, Dr. Valencia's 1997 light-duty work release, the 1997

functional capacities evaluation, and the medical records of

Drs. Valencia and E. Franklin Pence, Jr.   As fact finder, the

commission was entitled to reject Dr. Hatfield's May 5, 2001 and

May 15, 2001 opinions, which were not supported by records of

any corresponding medical examination.   "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 claimant's evidence proved she was totally disabled after

April 5, 1999 as a result of her compensable 1993 injury by

accident.   Accordingly, we affirm the commission's decision.

                                                         Affirmed.




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