COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

THE FINGLES COMPANY 

and 

MANUFACTURERS' ALLIANCE 

 INSURANCE COMPANY OPINION 

 BY JUDGE JOSEPH E. BAKER 

v. Record No. 2882-95-1 JULY 9, 1996 

 

RICHARD E. TATTERSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Kathryn Spruill Lingle (Midkiff & Hiner, 

P.C., on briefs), for appellants. 

 Karen M. Rye (Holly L. Bonham, on brief), for 

appellee. 

 The Fingles Company and Manufacturers' Alliance Insurance 

Company (jointly referred to herein as employer) appeal the 

decision of the Workers' Compensation Commission (commission) 

holding that Richard E. Tatterson (claimant) had not been 

released to return to his pre-injury employment. Finding the 

decision of the commission to be in error, we reverse. 

 Claimant sustained a fracture of his right femur on February 

18, 1992, while working for employer as a sheet metal journeyman. 

 The claim was accepted as compensable and compensation benefits 

were paid. 

 Under the direction of Dr. Harry J. Molligan, 

orthopedic/trauma surgeon, claimant underwent a "reconstruction 

IM nailing of his right femur." Following the surgery, claimant 

returned to restricted work on June 4, 1992, but became disabled 
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again when he underwent a second surgical procedure on July 10, 

1992 to remove screws in his femur.1

 In January 1994, after Dr. Molligan discontinued his 

practice, claimant came under the care of Dr. John J. Schaffer, 

orthopedic surgeon, sports medicine, and arthroscopic surgery 

specialist. In December 1994, after several examinations, Dr. 

Schaffer recommended to employer that claimant be evaluated by 

his associate, Dr. Wilford K. Gibson, orthopedic/general surgeon 

and fracture/trauma specialist. 

 Dr. Gibson evaluated claimant on December 9, 1994. His 

examination revealed that claimant was able to ambulate without 

aids and without a noticeable limp. Dr. Gibson noted a full 

active range of motion of the right hip and knee. Muscle 

strength was graded as five out of five in the quadriceps, hip 

flexors, hamstrings, tibialis anterior, and gastrosoleus muscle 

complex. Dr. Gibson assessed claimant as having a "well-healed 

right femur fracture with symptomatic hardware." He recommended 

that claimant "return to full activities, which would include 

work." 

 Upon receipt of this report, on December 28, 1994, employer 

wrote Dr. Schaffer requesting his opinion concerning claimant's 

ability to return to work and asked specifically whether he felt 

 1On May 5, 1993, claimant submitted to an independent 

examination by Dr. Colin W. Hamilton, an orthopedic surgeon, who 

reported that claimant "needs further surgery, very likely 

bone-grafting, to allow the fracture to heal." 
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that claimant "could return to full duty work." Employer further 

asked, "[i]f you do not feel that [claimant] can be released to 

full duty work, can you please state what restrictions, if any, 

you would impose on his working capabilities." 

 In Dr. Schaffer's reply to employer, he wrote that he agreed 

with Dr. Gibson's evaluation and would "not alter [Dr. Gibson's] 

suggestions about either returning to work or work status or 

physical limitations." He did not place any restrictions on 

claimant's ability to return to work. 

 In a further report dated June 13, 1995, Dr. Schaffer stated 

that claimant "could return to full pre-injury employment as a 

journeyman." 

 Employer filed an application alleging a change in condition 

and seeking termination of compensation benefits. The deputy 

commissioner held that employer met its burden of proof and 

terminated compensation benefits. 

 On review, a majority of the commission reversed the deputy 

commissioner. In its opinion, the commission asserted that 

nothing in the record indicated that either Dr. Gibson or Dr. 

Schaffer was familiar with claimant's pre-injury duties, and held 

that employer had presented no evidence that claimant had been 

unequivocally released to return to unrestricted work. We 

disagree. 

 The commission erred in finding that neither Drs. Gibson nor 

Schaffer unequivocally stated that claimant was fully able to 
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return to unrestricted work. In fact, in its opinion, the 

commission recognized that Dr. Gibson "unequivocally opined that 

the claimant could return to his full activities 'which would 

include work . . . .'" Dr. Schaffer, claimant's treating 

physician, concurred with Dr. Gibson's assessment and affirmed 

that claimant "could return to full pre-injury employment as a 

journeyman." See Pilot Freight Carriers, Inc. v. Reeves, 1 Va. 

App. 435, 439, 339 S.E.2d 570, 572 (1986) (the opinion of a 

treating physician is entitled to great weight). 

 In response to employer's letter of December 28, 1994, Dr. 

Schaffer listed no restrictions on claimant's working 

capabilities. No medical evidence contradicted the opinions of 

Drs. Schaffer and Gibson. 

 An employer alleging a change in condition bears the burden 

of proving that the claimant is fully able to perform the duties 

of his pre-injury employment. See Reeves, at 438-39, 339 S.E.2d 

at 572. That burden is met by uncontradicted evidence which 

establishes that no restrictions have been placed on the 

claimant's ability to return to work. Mace v. Merchants Delivery 

Moving & Storage, 221 Va. 401, 403, 270 S.E.2d 717, 719 (1980) 

(with unequivocal medical evidence that the claimant was fully 

able to return to unrestricted work and the absence of any 

evidence to the contrary, the commission could only conclude that 

the claimant was able to return to work, regardless of the 

placement of the burden of proof). Thus, where uncontradicted 
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medical evidence does not suggest any physical limitation on a 

claimant, the employer need not also show that the physician was 

familiar with the physical requirements of the job and the type 

of physical limitations which would prohibit its performance. 

Id. 

 This conclusion does not impermissibly shift the burden of 

proof to a claimant. Only if a claimant desires to challenge the 

accuracy of the employer's evidence and allege that some physical 

limitation related to his injury prohibits performance of his 

pre-injury job does the claimant then bear the burden to present 

contrary evidence. If a claimant presents such evidence, the 

commission must then make a finding of fact, weighing the 

evidence produced and determining whether the employer met its 

burden to prove a change in condition. If a claimant fails to 

produce such evidence, the commission can only conclude that the 

claimant has been released to return to his pre-injury 

employment. Here, claimant introduced no evidence to contradict 

the unequivocal opinions of Drs. Schaffer and Gibson. 

 We hold that, because the evidence of the treating 

physicians discloses unequivocally that claimant has no 

limitation on his ability to work, and that evidence is not 

contradicted, the commission erred when it refused to enter an 

order granting the relief sought by employer. Accordingly, we 

reverse and remand this case with direction that an order be 

entered consistent with this opinion. 
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 Reversed and remanded.