COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felt on, Judges Benton and Petty Argued at Richmond, Virginia

SUSAN ANN WASHINGTON MEMORANDUM OPINION * BY v. Record No. 1876-06-2 J UDGE JAMES W. BENTON, JR. APRIL 17, 2007 STANFORD ENTERPRISES/UPSCALE HEALTHCARE SERVIC ES AND THE UNINSURED EMPLOYER’S FUND

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Greg Harbison (Jamie L. Karek; Geoffrey R. McDonald & Associates, P.C., on br ief), for appellant. Steven H. Theisen (PennStuart, on brief), for appellee The Uninsured Employer’s Fund. No brief or argument for appe llee Stanford Enterprises/Upscale Healthcare Services.

The Workers’ Compensation Commission deni ed Susan Washington’s application for change in condition, ruling she failed to prove she was disabled from her pre-injury employment and, alternatively, she failed to adequately market her residual work capacity. We affirm the

decision.

I. Susan Washington worked for Stanford Enterpri ses as a certified nursi ng assistant. In her employment, she assisted patients in their hom es, performing duties such as cooking, giving medication, putting diapers on patients, bathing pa tients, and dressing patients. On March 17, 2004, Washington was in the process of transferring a patient, w ho weighed in excess of three

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - hundred pounds, from her bed to a chair when the patient fell on Washington. Washington suffered a sprained lower back and a torn ante rior cruciate ligament in her right knee. Washington received treatment for her injuries , including arthroscopic surgery and physical therapy. Washington sought temporary total disability compensation benefits and medical benefits beginning March 20, 2004, and continuing as long as necessary. Following a hearing, a deputy commissioner found that Washington suffered in juries to her back and knee and awarded her

medical care and treatment related back to the da te of her injury. He also found, however, that

no evidence in the record estab lished “any physician actually rem oved . . . Washington from the workforce for any reason connected with the March 17, 2004, injury.” The deputy commissioner

entered an award “for medica l care and treatment related . . . to the . . . injuries.” Several weeks after that decision, Washi ngton filed an application for change in condition, seeking temporary total disability be nefits. The Uninsured Employer’s Fund defended on the grounds that Washington had no continuing di sability and had failed to adequately market her residual work capacity. At the evidentiary h earing Washington testified about her duties as a nursing assistant and explained th e services she performed for th e heavy patient during the two years prior to her injury. She also testified th e heaviest items she lifted as a nursing assistant were baskets of laundry that weighed signifi cantly less than twenty pounds. Her treating physician reported she had reached maximum me dical improvement and noted she has “job restrictions . . . [because] she cannot be carryi ng loads or lifting over 20 lbs. on a continuing

basis.” The deputy commissioner found that Wash ington was entitled to temporary total disability beginning January 2, 2006, the date fr om which she reasonably marketed her residual work capacity. On appeal, the commission reve rsed that decision and set aside the award.- 3 - II. We are governed by statute, which provides that an award of the commission “shall be conclusive and binding as to all questions of f act.” Code § 65.2-706(A). Thus, on appeal from a decision of the commission, “[i]t is our duty to determine whether credib le evidence supports the Commission’s finding . . . and, if su ch evidence exists, to sustain the finding.” Cook v. City of Waynesboro , 225 Va. 23, 31, 300 S.E.2d 746, 750 (1983). “We do not judge the credibility of witnesses or weigh the evidence on app eal.” Celanese Fibers Co. v. Johnson , 229 Va. 117, 121, 326 S.E.2d 687, 690 (1985). “If there is evidence or reasonable inferenc e that can be drawn from the evidence to support the Commission’s findings, they will not be disturbed by this Court on appeal, even though there is evidence in the reco rd to support contrary findings of fact.” Caskey v. Dan River Mills, Inc. , 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). In her application alleging a change in condition, Washington bore the burden of proving her allegations by a preponderan ce of the evidence. Pilot Fr eight Carriers, Inc. v. Reeves , 1 Va. App. 435, 438, 339 S.E.2d 570, 572 (1986). The co mmission’s findings from the evidence included the following: The claimant[, Washingt on,] has the burden of proving the extent and duration of her disabi lity. While we agree that her physician has placed causally relate d restrictions upon her capacity to work, he did not limit her from performing her pre-injury employment. [Washington] testified to her required duties, and agreed that, at most, she lifted seven pounds. Th e record does reflect that she pushed her patient in a wheelchair and performed other duties, such as rolling her over. However, Dr. Adelaar’s restrictions were precisely limited to not continuous ly carrying loads or lifting over 20 pounds. According to [Washington’s] testimony, her pre-injury job did not require this type of physical capab ility. Furthermore, her actions illustrate d her acknowledgement that she could perform her pre-injury work, since she sought employment as a nursing assistant. [Washington] presen ted no convincing evidence to the contrary.- 4 - In her brief on appeal, Washington presents a narrative of the evidence viewed in the light most favorable to her change-in-condition application and cites no authority or precedent supporting her appeal of this issue. “Under our st andard of review, [however,] when we consider an appeal from the commission’s decision, we must view the evidence in the light most favorable to the party who prevailed before the comm ission.” K&K Repairs & Constr. v. Endicott , 47 Va. App. 1, 6, 622 S.E.2d 227, 229 (2005). Furtherm ore, Rule 5A:20(e) requires that an appellant’s opening brief to this Court contain “[ t]he principles of law, the argument, and the authorities relating to each quest ion presented.” Mere unsupporte d assertions of error “do not merit appellate consideration.” Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Simply put, Washington’s br ief does not comply with Rule 5A:20(e); it failed to include sufficient principles of law or any citation to legal authorities in support of this issue. Upon our review, we cannot say the commission’s opinion is not based upon credible

evidence. The commission made factual fi ndings based upon the testimony and the medical reports, and the commission drew reasonable inferences from that evidence. We, therefore,

affirm the decision. This holdi ng is dispositive because the insufficient challenge to the commission’s finding on the issu e of disability renders moot the issue of the adequacy of Washington’s marketing of her residual work capacity. See Allen v. Southern Commercial Repair, Inc. , 40 Va. App. 116, 120, 578 S.E.2d 64, 66 (2003) (explaining that an employee’s efforts to market residual work capacity are a factor when deciding partial disa bility benefits).

Affirmed.