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. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 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. 
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, 

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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 

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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 

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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). 

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 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 

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

capacity. 

 The judgment of the commission is affirmed. 

 Affirmed.

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