COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Agee and Senior Judge Overton 

Argued at Alexandria, Virginia 

TRADESMEN INTERNATIONAL, INC. AND 

 LUMBERMEN'S UNDERWRITING ALLIANCE 

 MEMORANDUM OPINION* BY 

v. Record No. 1726-01-4 JUDGE NELSON T. OVERTON 

 MARCH 19, 2002 

GARY T. COX 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Scott C. Ford (McCandlish Kaine, P.C., on 

brief), for appellants. 

 No brief or argument for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

 Tradesmen International, Inc., and its insurer (hereinafter 

referred to as "employer") contend the Workers' Compensation 

Commission ("commission") unreasonably interpreted Rule 1.4(C) 

when it dismissed employer's July 31, 2000 application and 

required benefits payments until a successive application was 

filed on January 3, 2001. Finding no error, we affirm the 

commission's decision. 

 Gary T. Cox ("claimant") suffered a compensable injury – a 

hernia – on April 24, 2000. Upon examining claimant on May 1, 

2000, Dr. Ronald Kurstin found that claimant had a right 

inguinal bulge that "occurred after working on the job," and 
also noted that claimant complained of "arm pain on the right 

near the elbow, which occurred at similar type of activity." 

Dr. Kurstin noted the following recommendation: "Giving him 

enough time to recuperate from his arm, I would plan on doing 

him around the first week in June." Dr. Kurstin performed 

claimant's surgery on June 6, 2000, and on June 16, 2000, 

completed a work restriction form indicating that claimant was 

not to return to construction work for "at least 4 weeks." 

 On July 26, 2000, Dr. Kurstin completed a "questionnaire" 

concerning claimant's scheduling of his surgery. Dr. Kurstin 

indicated that he could have performed the surgery promptly 

after claimant's May 1, 2000 office visit, but that claimant 

"delayed his surgery until June 6, 2000, because of unrelated 

elbow complaints." The word "unrelated" was then marked through 

and initialed by Dr. Kurstin. Dr. Kurstin indicated that 

because of claimant's elbow problem, he did not agree that 

claimant could have returned to work sooner had the surgery been 

performed sooner. 

 On July 31, 2000, employer filed an application to 

terminate benefits as of May 1, 2000, based on claimant's 

alleged refusal of medical treatment by unnecessarily postponing 

recommended surgery. 

 Claimant was released to pre-injury work on August 7, 2000. 

On January 3, 2001, the commission received a second application 

-2-
from employer alleging that Dr. Kurstin released claimant to 

pre-injury work as of August 7, 2000. Employer clarified that 

the application was a "successive" application and alleged that 

benefits were last paid through July 17, 2000. 

 When a challenge is made to the commission's construction 

of its rules, "our review is limited to a determination whether 

the commission's interpretation was reasonable." Classic 

Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761, 763 

(1989). Under Commission Rule 1.4(C)(2), compensation shall be 

paid through the date the application was filed unless the 

application alleges refusal of medical treatment, in which case 

the payment "shall be made to the date of the refusal or 14 days 

before filing, whichever is later." Commission Rule 1.4(C)(4) 

states that compensation shall be paid through the date the 

application was filed unless "[a]n employer files successive 

applications, in which case compensation shall be paid through 

the date required by the first application. If the first 

application is rejected, payment shall be made through the date 

required by the second application." 

 Claimant underwent the recommended surgery on June 6, 2000; 

employer's first application was filed on July 31, 2000. At the 

hearing on this application, held on January 29, 2001, the 

deputy commissioner dismissed the application because any 

refusal by claimant to undergo the recommended medical treatment 

-3-
was "cured" by the June 6, 2000 surgery, well before the 

application was filed. Therefore, employer failed to show 

refusal of medical treatment, and the deputy commissioner did 

not err in dismissing the first application. 

 After dismissing the first application, the deputy 

commissioner considered employer's second application. Under 

these circumstances, Rule 1.4(C) requires payment to be made 

through the date the second application is filed. Employer's 

argument that Rule 1.4(C)(4) technically applies to "rejected" 

first applications as opposed to "dismissed" first applications 

is misplaced. See Day v. Shenandoah Fiberglass Prods. Co., 

Inc., 70 O.I.C. 73, 74-75 (1991) ("If the first application had 

been dismissed, the employer would have had to pay benefits to 

the date the second application was filed."). The commission 

did not err in applying Rule 1.4(C)(4) to require employer to 

make payments until the second application was filed on January 

3, 2001. 

 The commission's interpretation of its rules was reasonable. 

Accordingly, we affirm the decision of the commission. 

 Affirmed.

-4-