COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Bray and Senior Judge Duff 

Argued at Alexandria, Virginia 

ELVA PAULINE FRYE 

v. Record No. 3008-95-4 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

LEGGETT, ET AL. MAY 7, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Michael W. Heaviside (Ashcraft & Gerel, on 

brief), for appellant. 

 Edward H. Grove, III (Brault, Palmer, Grove, 

Zimmerman, White & Mims, on brief), for 

appellees. 

 Elva Pauline Frye (claimant) appeals the decision of the 

Workers' Compensation Commission (commission) denying her 

application for reinstatement of temporary total disability 

benefits. Contrary to the commission's finding, she contends 

that sufficient evidence supported her claim of a change in 

condition. We disagree and affirm the commission. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a disposition of this 

appeal. Guided by well established principles, we construe the 

evidence in the light most favorable to the party prevailing 

below, Leggett (employer) in this instance. Crisp v. Brown's 

Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 

916 (1986). 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

 

 Claimant, a beauty consultant, sustained a work-related 

injury on August 8, 1991, and was awarded temporary total 

disability benefits.1

 Her treating physician, Dr. Thomas W. 

Daugherty, released claimant to pre-injury employment beginning 

October 22, 1991, with instructions to avoid "heavy lifting." 

After several months of "light duty" work with employer, claimant 

resigned and accepted a position with J. C. Penney. She remained 

with J. C. Penney until her resignation on December 24, 1992, and 

has since worked for only one day. On June 13, 1994, claimant 

filed an application alleging a change in condition attributable 

to the original injury and seeking temporary total disability 

benefits, commencing March 21, 1994. 

 Dr. Daugherty advised claimant's counsel on March 21, 1994, 

that, "[claimant] continues to be disabled as a direct result of 

her industrial accident on August 8, 1991," adding that her 

"ongoing symptom complex [is] all totally, completely and fully 

related to her August 8, 1991, event." However, in November, 

1994, Dr. Daugherty noted that claimant's "neck, shoulder and 

back are all giving her lots of problems," but he was then unable 

to "specifically diagnose why she was having this much trouble." 

 The following month, he reported that claimant's MRI diagnostic 

tests "are within normal limits . . . . Believe she has 

 1Claimant received benefits for the periods August 30, 1991, 

to October 20, 1991, and September 4, 1992, to September 26, 

1992. She was denied benefits beginning December 24, 1992, and 

continuing. 
- 3 - 

basically recovered from the symptoms she was experiencing 

secondary to the post traumatic condition of 8/13/91." 

Nevertheless, Dr. Daughtery opined in June, 1995, that claimant 

"continues to be disabled from her previous level of gainful 

employment," and "[r]eexamination of the patient . . . confirms 

. . . the opinions stated in [the March 21, 1994] letter." 

 An employee seeking reinstatement of disability benefits 

resulting from a change in condition must prove by a 

preponderance of the evidence that (1) there has been a change in 

employee's capacity to work, and 2) if so, that the change is due 

to a condition causally connected with the injury originally 

compensated. King's Market v. Porter, 227 Va. 478, 483, 317 

S.E.2d 146, 148 (1984); see Great Atl. & Pac. Tea Co. v. Bateman, 

4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). "Unless we can 

say as a matter of law that the evidence submitted by [claimant] 

was sufficient to sustain [her] burden [of proof], . . . the 

commission's finding . . . is binding and conclusive upon us." 

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 

833, 835 (1970). 

 The commission characterized Dr. Daugherty's medical 

evidence as "contradictory," providing "no assessment of total 

disability" or "the extent of . . . disability" and concluded 

that claimant had failed to establish a "change in her capacity 

to work . . . causally connected to the original injury." This 

finding enjoys substantial support in the record and will not be 
- 4 - 

disturbed on appeal. 

 Accordingly, we affirm the decision of the commission.2

 Affirmed.

 

 2We decline to address claimant's efforts to market her 

residual work capacity.