                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


HOY CONSTRUCTION, INC. AND
 LIBERTY MUTUAL FIRE INSURANCE CO.

v.   Record No. 2152-99-1

HOWARD FLENNER                                 OPINION BY
                                          JUDGE RICHARD S. BRAY
HOWARD FLENNER                                 MAY 2, 2000

v.   Record No. 2229-99-1

HOY CONSTRUCTION, INC. AND
 LIBERTY MUTUAL FIRE INSURANCE CO.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Bradford C. Jacob (Taylor & Walker, P.C., on
            briefs), for Hoy Construction, Inc. and
            Liberty Mutual Fire Insurance Co.

            C. Allen Riggins (Parker, Pollard & Brown,
            P.C., on briefs), for Howard Flenner.


     Hoy Construction, Inc. and Liberty Mutual Fire Insurance Co.

(collectively employer) appeal an award of temporary total

disability benefits to Howard Flenner (claimant), upon his change

of condition application.    Employer contends that the award is

barred by Code § 65.2-510 and, moreover, is unsupported by the

evidence.   Claimant cross-appeals, complaining that the commission

erroneously construed Code § 65.2-510 to preclude temporary

partial disability compensation, following the award of temporary

total disability benefits.   Agreeing both with the commission's
application of the statute and the award of benefits to claimant,

we affirm the decision.

     Claimant suffered an industrial injury on September 2, 1995.

Employer accepted the resulting claim as compensable, and claimant

received temporary total disability benefits.    On April 8, 1996,

Dr. David Biondi, a neurologist, released claimant to restricted

work, but claimant refused employer's offer of selective

employment, prompting employer to request the commission to

terminate benefits.    On August 20, 1996, the commission granted

employer relief, effective April 12, 1996, noting that "claimant

conceded that he refused the selective employment due to physical

problems unrelated to the work injury" and had "offered no . . .

justification" for his conduct.    Claimant did not appeal the

decision or cure such refusal within six months of April 12, 1996.

     On May 7, 1997, claimant filed the instant application with

the commission, alleging a change of condition and seeking

temporary total disability benefits, commencing February 24, 1997,

through October 13, 1997, with temporary partial benefits

thereafter.    Employer asserted Code § 65.2-510 1 as an absolute bar



     1
         Code § 65.2-510 provides, in pertinent part,

            A. If an injured employee refuses
            employment procured for him suitable to his
            capacity, he shall only be entitled to the
            benefits provided for in §§ 65.2-503
            [permanent loss] and 65.2-603 [employer's
            duty to furnish medical care], . . . during
            the continuance of such refusal, unless in

                                 - 2 -
to relief and, also, challenged the claim on the merits.    Claimant

countered that the statute was inapplicable both to a total

disability that occurred after an unjustified refusal of selective

employment and to a subsequent partial disability.

     Following consideration of the record and arguments on

appeal, the commission determined that claimant had suffered a

temporary total disability after his unjustified refusal of

selective employment and awarded attendant benefits, reasoning

that the bar of Code § 65.2-510 is inapplicable to a subsequent

total disability.   However, the commission further concluded that

the statute precluded benefits for any subsequent partial

disability and denied such claim.    Both employer and claimant

appeal.




          the opinion of the Commission such refusal
          was justified.

           *        *     *      *       *      *       *

          C. A cure of unjustified refusal pursuant
          to subsection A may not be established if
          the unjustified refusal lasts more than six
          months from the last day for which
          compensation was paid before suspension
          pursuant to this section; however, the
          six-month period may be extended by the
          number of days a claimant is totally
          disabled if the disability commenced during
          such six-month period. . . .

(Emphasis added.)


                               - 3 -
                                  I.

               Employer's Appeal, Record No. 2152-99-1

     While the instant appeal was pending in this Court, we

decided, in Southwest Virginia Tire, Inc., et al. v. Bryant, 31

Va. App. 655, 525 S.E.2d 563 (2000), that "Code § 65.2-510 does

not have any bearing upon a change-in-condition application for an

employee who becomes totally disabled as a result of the

industrial injury."   Id. at 659, 525 S.E.2d at ___.     Thus, the

commission correctly ruled that the statute does not bar the

disputed award, upon proof of a change in condition resulting in

temporary total disability, notwithstanding claimant's failure to

cure the earlier unjustified refusal of selective employment

within six months.

     Employer, however, also contends that claimant's evidence

failed to prove a total disability for the period in issue.

"Following established principles, we review the evidence in the

light most favorable to the prevailing party."   R.G. Moore Bldg.

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990).    "Factual findings of the commission that are supported by

credible evidence are conclusive and binding upon this Court on

appeal."    Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131,

134, 428 S.E.2d 32, 34 (1993).    "If there is evidence, or

reasonable inferences can be drawn from the evidence, to support

the Commission's findings, they will not be disturbed on review,

even though there is evidence in the record to support a contrary

                                 - 4 -
finding."   Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va.

App. 276, 279, 348 S.E.2d 876, 877 (1986).   "This rule applies

when an expert's opinion contains internal conflict."     Greif

Companies/Genesco, Inc. v. Hensley, 22 Va. App. 546, 552, 471

S.E.2d 803, 806 (1996).

     In awarding claimant temporary total disability benefits,

the commission reviewed the deposition of Dr. Robert Hansen, a

neurologist, together with the related reports, notes and

correspondence of Dr. David Biondi and Dr. Kerri L. Wilkes, a

"headache specialist."    While we concur in the commission's

observation that "it is difficult to determine Dr. Hansen's true

opinion about claimant's ability to work," we also agree that

sufficient evidence established a total disability for the

period.

     On April 18, 1997, Dr. Hansen noted that claimant had

            not been cleared to return to work. He has
            been felt in the past, both by Dr. Biondi
            and by myself, to have achieved maximal
            medical improvement (MMI). . . . I think it
            is appropriate . . . to have an FCE
            [Functional Capacity Evaluation] performed.
            Return to work recommendation can be
            generated on the basis of the FCE.

Dr. Hansen further recorded, on April 30, 1997, that

claimant had

            been followed . . . for some time with axial
            pain and headaches. . . . The pain has been
            very difficult to control. Recently, he has
            had more pain and headaches . . . [and] was
            deemed by me to be unable to return to work,
            as of 2/24/97, because of the problems

                                - 5 -
          . . . . At the present time, [he] is not
          able to return to work.

Following the FCE, Dr. Wilkes released claimant to work on July

3, 1997, and Dr. Hansen "deferred" to such recommendation.

     Thus, despite a sometimes contradictory deposition by Dr.

Hansen, a review of the entire record provides sufficient

support for the commission's decision.

                                 II.

             Claimant's Appeal, Record No. 2229-99-1

     It is uncontroverted that the commission previously

terminated claimant's original award of disability benefits,

effective April 12, 1996, upon a finding that he refused

selective employment without justification.   Subject to certain

exceptions not pertinent to the instant proceedings, Code

§ 65.2-510(A) provides for the termination of benefits to an

"injured employee refus[ing] employment procured for him

suitable to his capacity."   Code § 65.2-510(C) prevents an

injured employee from curing an unjustified refusal of selective

employment that "lasts more than six months from the last day

for which compensation was paid before suspension pursuant to

this section[.]"   Thus, when claimant failed to cure his

unjustified refusal of selective employment on or before October

12, 1996, his right to cure and pursue reinstatement of partial

disability benefits was lost.




                                - 6 -
     Claimant's contention that Code § 65.2-510(C) does not

operate to bar the restoration of partial disability benefits

following an intervening period of compensable total disability

is without merit.   The commission correctly applied Code

§ 65.2-510(C) to deny claimant renewed partial disability

benefits, reasoning that "an employee who did not cure an

unjustified refusal within six months forever loses the right to

additional temporary partial benefits . . . ."   This result

comports with the "unambiguous, . . . plain meaning" of Code

§ 65.2-510(C), and we need not "resort to the rules of statutory

construction" to divine legislative intent.   Last v. Virginia

State Bd. of Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205

(1992).   Contrary to claimant's argument, the statute does not

exempt his "refusal for medical reasons" or establish

distinctions between degrees of partial incapacity.

     Accordingly, we affirm the decision of the commission.

                                                        Affirmed.




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