                               COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, Beales and Alston
Argued at Alexandria, Virginia


MARK A. WINDSOR
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0790-11-4                                   JUDGE RANDOLPH A. BEALES
                                                                  DECEMBER 20, 2011
LOOMIS FARGO & COMPANY AND
 INDEMNITY INSURANCE COMPANY
 OF NORTH AMERICA


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 John B. Delaney (Delaney, McCarthy & Colton, P.C., on briefs), for
                 appellant.

                 Angela F. Gibbs (Dana L. Plunkett; Midkiff, Muncie & Ross, P.C.,
                 on brief), for appellees.


       Mark A. Windsor (appellant) appeals the decision by the Workers’ Compensation

Commission (the commission) that appellant was not entitled to temporary total disability

benefits after October 7, 2009. Appellant argues on appeal that the commission erred when it

found that it was appellant’s burden to prove that he remained totally disabled after that date.

We disagree with appellant’s argument, and, therefore, for the following reasons, we affirm the

commission’s decision.

                                        I. BACKGROUND

                   A. Compensable Injury and Return to Light-Duty Employment

       Prior to suffering a compensable injury on February 21, 2008, appellant was employed as

a driver for Loomis Fargo & Company (employer). On that date, another vehicle struck


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
appellant’s company vehicle from behind, resulting in several compensable injuries to appellant,

including damage to a disc in his back. Employer agreed to pay temporary total disability

benefits beginning on February 29, 2008. This initial award of temporary total disability (“the

May 23, 2008 temporary total disability award”) is not directly at issue in this appeal.

       Appellant returned to light-duty work for employer as a dispatcher on June 29, 2009,

pursuant to the instructions of his treating physician, Dr. Colley. Appellant ceased this light-duty

employment on August 17, 2009, also pursuant to Dr. Colley’s instructions. On September 23,

2009 – the date of Dr. Colley’s last evaluation of appellant, according to the commission’s

record – Dr. Colley instructed appellant to “[c]ontinue with out of work status for now with

re-assessment” of that status two weeks later. However, there is no indication from the

commission’s record that such a reassessment occurred two weeks after September 23, 2009 –

i.e., on October 7, 2009 – or at any time thereafter.

                         B. Employer’s Change-in-Condition Application

       On December 30, 2009, employer filed an application for a hearing in the commission,

alleging a change in condition – specifically, that appellant had returned to light-duty work on

June 29, 2009 and, thus, was no longer totally disabled. On January 19, 2010, the commission

made an initial finding of “probable cause” supporting the employer’s application. Pursuant to

the commission’s rules, the May 23, 2008 temporary total disability award was preliminarily

suspended pending an evidentiary hearing.

       At the evidentiary hearing before the deputy commissioner, employer introduced medical

records from Dr. Colley indicating that appellant had been released for light-duty work on May

6, 2009, with instructions that appellant not lift or carry more than 30 pounds. Employer also




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introduced Dr. Colley’s progress notes from June 3, 2009, July 1, 2009, and July 29, 2009. 1 In

addition, William Elliot, appellant’s supervisor when he returned to light-duty work, testified at

the evidentiary hearing that appellant served as a truck dispatcher during appellant’s period of

light-duty employment. According to Elliot, appellant could perform this job either sitting or

standing, and he was not required to lift anything at all. Elliot testified that appellant stopped

working in August 2009.

         Appellant also introduced several progress notes from Dr. Colley. In the first of these

progress notes, dated August 24, 2009, Dr. Colley indicated that appellant should be “taken out

of work for a week and re-assess[ed] for return to work next week.” “Maybe just a brief rest

break will help,” Dr. Colley wrote in the August 24, 2009 progress note. “If no improvement we

will need to consider other options.” Dr. Colley’s next progress note, dated September 2, 2009,

indicated that appellant was “unable to return back to work in a light duty status at this time due

to the exacerbation in symptoms.” Dr. Colley’s final progress note in the commission record,

dated September 23, 2009, stated, “Follow up in 2 weeks [i.e., October 7, 2009] for re-evaluation

and medication renewal. Continue with out of work status for now with re-assessment at that

time.”

                                C. Deputy Commissioner’s Rulings

         The deputy commissioner’s opinion noted the parties’ stipulation that appellant returned

to light-duty employment from June 29, 2009 to August 17, 2009. Based on this stipulation, the


         1
         Dr. Colley’s progress notes from June 3, 2009 (before appellant returned to light-duty
work) and July 1, 2009 (shortly after appellant began light-duty work) contained additional
light-duty instructions, such as that appellant should mainly be in a stationary seated position at
work, so as to avoid aggravating the disc injury. The last of Dr. Colley’s progress notes
introduced by employer, dated July 29, 2009, indicated that appellant “does his job but he hurts”
and that appellant was “adhering to his restrictions but with difficulty.” At that time, Dr. Colley
instructed appellant to continue with pain medication and scheduled a follow-up visit in four
weeks.

                                                -3-
deputy commissioner found that employer satisfied its burden of proving a change in condition

under Code § 65.2-708(A). 2 The deputy commissioner then terminated the May 23, 2008

temporary total disability award effective June 29, 2009 – the date appellant returned to

light-duty employment. Significantly, appellant never requested full commission review of the

deputy commissioner’s decision to terminate the May 23, 2008 temporary total disability award.

       Given that appellant’s light-duty employment ceased on August 17, 2009, pursuant to

Dr. Colley’s instructions, the deputy commissioner then awarded appellant a new period of

temporary total disability benefits “from August 17, 2009 and continuing until conditions justify

modification thereof.” Employer requested full commission review of the deputy

commissioner’s decision to award appellant this new period of temporary total disability

benefits.

                                       D. Full Commission Review

       On review, the full commission made several rulings that are pertinent to this appeal.

First, a majority of the commissioners found that the deputy commissioner’s decision to

terminate the May 23, 2008 temporary total disability award was final because appellant did not

seek full commission review of this ruling by the deputy commissioner. The commission

majority also found that the deputy commissioner had authority to consider appellant’s

entitlement to a new period of workers’ compensation benefits after his light-duty employment


       2
            That statute states, in pertinent part:

                  Upon its own motion or upon the application of any party in
                  interest, on the ground of a change in condition, the Commission
                  may review any award and on such review may make an award
                  ending, diminishing or increasing the compensation previously
                  awarded, subject to the maximum or minimum provided in this
                  title, and shall immediately send to the parties a copy of the
                  award.”

Code § 65.2-708(A).
                                                      -4-
ended on August 17, 2009 (even though appellant did not file a new application for benefits).

However, the commission majority found that the deputy commissioner erred in requiring

employer to prove that appellant was not totally disabled on August 17, 2009 or at any time

thereafter. The commission explained:

               We can conceive of no reason why the burden of proof in this case
               should be any different than the burden of proof in every other
               situation where a claimant seeks benefits following termination of
               an award, and we hold that such burden of proof rests with the
               claimant.

       The commission majority then found that appellant satisfied his burden of proving a

temporary total disability from August 17, 2009 to October 7, 2009 – but not after October 7,

2009. The commission noted that October 7, 2009 was “the date the claimant was to return to

Dr. Colley so that his ability to return to work could be assessed.” Since there was no indication

in the record that appellant was evaluated by Dr. Colley on October 7, 2009 (or at any time after

September 23, 2009), the commission majority declined to “presume ongoing disability in the

absence of supporting medical evidence.”

       Thus, the commission awarded appellant temporary total disability benefits, effective on

August 17, 2009 – but only through October 7, 2009.

                                         II. ANALYSIS

       On appeal to this Court, appellant challenges the commission’s finding that he was not

entitled to temporary total disability benefits after October 7, 2009. Appellant argues that the

commission erred when it assigned him the burden of proving a new period of temporary total

disability following the termination of the May 23, 2008 temporary total disability award.

“The question of which party bears the burden of proof is a question of law.” Mulford v. Walnut

Hill Farm Group, LLC, 282 Va. 98, 111, 712 S.E.2d 468, 476 (2011).




                                               -5-
          A. This Court’s Decision in Telesystems, Inc. v. Hill is Not Controlling Here

       Appellant argues that this Court’s decision in Telesystems, Inc. v. Hill, 12 Va. App. 466,

404 S.E.2d 523 (1991), is controlling on this issue and dictates a finding that employer retained

the burden of proof throughout the entirety of the commission proceedings. The commission

found that the circumstances in Hill were distinguishable, and, therefore, found that it was not

bound by this Court’s decision in that case. We agree with the reasoning and conclusion of the

commission.

       In Hill, Hill’s employer (Telesystems) filed an application for a hearing in the

commission alleging that Hill was no longer entitled to temporary total disability benefits

because Hill briefly worked in a light-duty capacity with another employer. Pursuant to the

commission’s rules, the temporary total disability award was suspended pending an evidentiary

hearing. Following the evidentiary hearing, the deputy commissioner ordered the full

resumption of Hill’s temporary total disability benefits (with a credit given to Telesystems to

account for Hill’s light-duty earnings), and the full commission affirmed that decision. Hill, 12

Va. App. at 468-69, 404 S.E.2d at 524-25.

       On appeal, this Court discussed the limited effect of suspending an open award, pending

an evidentiary hearing on a change-in-condition application. This Court explained that such a

suspension of benefits is “simply preliminary and temporary, intended to protect both parties’

interests until the commission resolves the noticed matter on its merits.” Id. at 470, 404 S.E.2d

at 526. Given that Hill’s award was only preliminarily suspended – but not actually terminated –

this Court held, “The burden remained with the employer, Telesystems in this case, to prove an

actual change in condition and the extent of change.” Id. at 472, 404 S.E.2d at 526. This Court

then affirmed the commission’s finding that Telesystems failed to satisfy this burden of proving

a change in condition. Id. at 472, 404 S.E.2d at 526-27.

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       The case before us today presents a very different scenario than Hill. The only similarity

between this case and Hill is that appellant’s May 23, 2008 temporary total disability award also

was suspended preliminarily, pending an evidentiary hearing on employer’s change-in-condition

application. However – unlike in Hill – employer here actually satisfied its burden of proving a

change in condition based on the parties’ stipulation that appellant returned to light-duty

employment on June 29, 2009. The deputy commissioner in this case then terminated the May

23, 2008 temporary total disability award. Conversely, Hill’s temporary total disability was

never terminated (but was instead fully reinstated by the commission). Because Hill involved

only the preliminary suspension of a temporary total disability award – but not the actual

termination of that award on the merits – the decision in Hill simply is not controlling on the

very different circumstances in this case.

      B. The Termination of the May 23, 2008 Temporary Total Disability Award is Final

       Furthermore, this Court cannot now consider on appeal the deputy commissioner’s

decision to terminate the May 23, 2008 temporary total disability award. As the commission

found, appellant never sought full commission review of that decision by the deputy

commissioner. See Comm’n Rule 3.1 (“Failure of a party to assign any specific error in its

request for review may be deemed by the Commission to be a waiver of the party’s right to

consideration of that error.”). Given this procedural posture, the commission ruled, “Since the

claimant did not appeal the termination of the May 23, 2008 award, that termination is final.”

       Because the full commission never considered the termination of the May 23, 2008

temporary total disability award on the merits, this Court has “no commission ruling to review”

on this issue. Hodnett v. Stanco Masonry, Inc., 58 Va. App. 244, 253, 708 S.E.2d 429, 434

(2011). Consequently, this Court “cannot consider” on appeal the termination of the May 23,

2008 temporary total disability award. Id.; see Rule 5A:18.

                                                -7-
         C. The Full Commission Did Not Err in Finding that Appellant Failed to Prove
                        Temporary Total Disability After October 7, 2009

       In this case, the deputy commissioner terminated the May 23, 2008 temporary total

disability award, and the termination of that award is now final because appellant never sought

full commission review of the deputy commissioner’s decision. Given this posture, the

commission did not err when it found that appellant assumed the burden of proving any further

period of temporary total disability. Under settled law, “‘a party seeking compensation bears the

burden of proving his disability and the periods of that disability.’” Uninsured Employer’s Fund

v. Clark, 26 Va. App. 277, 285-86, 494 S.E.2d 474, 478 (1998) (emphasis added) (quoting

Marshall Erdman & Assocs., Inc. v. Loehr, 24 Va. App. 670, 679, 485 S.E.2d 145, 149 (1997));

see Lot Masters v. Gibbs, 11 Va. App. 70, 72, 396 S.E.2d 395, 396 (1990) (“Had the commission

vacated or terminated the prior temporary total award, the burden would have been on Gibbs to

file an application and produce evidence establishing continuing disability. However, the

commission did not terminate the prior award.”).

       In addition, while the commission found that appellant satisfied his burden of proving a

temporary total disability beginning on August 17, 2009 (when appellant ceased light-duty

employment pursuant to Dr. Colley’s instructions), the commission also found that appellant

failed to prove that the temporary total disability continued after October 7, 2009 – i.e., two

weeks following appellant’s last visit with Dr. Colley that is apparent from the commission’s

record. We “must defer” to these findings by the commission because they are “supported by

credible evidence in the record.” Diaz v. Wilderness Resort Ass’n, 56 Va. App. 104, 114, 691

S.E.2d 517, 522 (2010); see Apple Constr. Corp. v. Sexton, 44 Va. App. 458, 460, 605 S.E.2d

351, 352 (2004) (explaining that the evidence is viewed in the light most favorable to the

prevailing party in the commission).



                                                -8-
       At the evidentiary hearing, appellant presented three progress notes from Dr. Colley –

dated August 24, September 2, and September 23, 2009. All three progress notes reflected that

appellant was currently unable to return to work – but also that Dr. Colley intended to reassess

that conclusion after a short period of time.

       The August 24, 2009 progress note states that appellant is scheduled to return to

Dr. Colley’s office for a follow-up appointment on September 2 for an evaluation on “return to

work [versus] consideration of return to therapy.”

       The September 2, 2009 progress note then indicates that appellant is to undergo “a brief

course” of physical therapy “before releasing back to work,” with a reevaluation scheduled for

September 23, 2009.

       Finally, the September 23, 2009 progress note states, “Follow up in 2 weeks for

re-evaluation and medication renewal. Continue with out of work status now with re-assessment

at that time.” (Emphasis added).

       Given Dr. Colley’s progress notes, the commission found:

               Dr. Colley, as of September 23, 2009, must have believed that the
               claimant’s work status could change, as of October 7, 2009,
               otherwise there would be no reason to assess it again at that time.
               The claimant never followed up with Dr. Colley after September
               23, 2009, and his work status was accordingly never re-assessed.
               Indeed, after the September 23, 2009 record from Dr. Colley, there
               are no medical records relating to any treatment received by the
               claimant through May 24, 2010, the date of the hearing below, a
               period of eight months.

       Unwilling to “presume ongoing disability in the absence of supporting medical

evidence,” the commission awarded appellant temporary total disability benefits only “through

October 7, 2009, the date the claimant was to return to Dr. Colley so that his ability to return to

work could be assessed.” The commission noted, “It would be nothing more than speculation to

conclude that the claimant remained totally disabled through the [May 24, 2010] hearing date

                                                -9-
eight months later.” Viewing the evidence in the light most favorable to employer, as the

prevailing party below, see Apple Constr. Corp., 44 Va. App. at 460, 605 S.E.2d at 352, the

commission’s decision to award appellant temporary total disability benefits only through

October 7, 2009, therefore, was supported by credible evidence in the record. See Diaz, 56

Va. App. at 114, 691 S.E.2d at 522.

                                       III. CONCLUSION

       Appellant never sought full commission review of the deputy commissioner’s decision to

terminate the May 23, 2008 temporary total disability award effective on June 29, 2009 – the

date that the parties stipulated that appellant returned to light-duty work. Under these

circumstances, the commission did not err in finding that it was appellant’s burden to establish a

new period of temporary total disability – and credible evidence supports the commission’s

finding that appellant failed to prove that he was totally disabled after October 7, 2009.

Accordingly, for the foregoing reasons, we affirm the decision of the commission.



                                                                                             Affirmed.




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