COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Duff 

CARLOS A. REAL 

 MEMORANDUM OPINION* BY 

v. Record No. 2859-96-4 CHARLES H. DUFF 

 JULY 29, 1997 

TOWER ELECTRIC COMPANY, 

 LMI INSURANCE COMPANY, 

 CANOVA ELECTRICAL CONTRACTING, INC. 

 AND ROYAL INSURANCE COMPANY OF AMERICA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Herman M. Sawyer, Jr., on brief), for 

appellant. Appellant submitting on brief. 

 (Cathie W. Howard; Pierce & Howard, P.C., on 

brief), for appellee LMI Insurance Company. 

Appellee submitting on brief. 

 (Benjamin J. Trichilo; Trichilo, Bancroft, 

McGavin, Horvath & Judkins, P.C., on brief), 

for appellees Canova Electrical Contracting, 

Inc. and Royal Insurance Company of America. 

 Appellees submitting on brief. 

 No brief for appellee Tower Electric Company. 

 Carlos A. Real appeals a decision of the Workers' 

Compensation Commission (commission) awarding him temporary total 

disability benefits from June 21, 1994 through July 26, 1994. 

Real contends that the commission erred in finding that he failed 

to prove he was totally disabled after July 26, 1994 as a result 

of his compensable June 21, 1994 injury by accident. Finding no 

error, we affirm the commission's decision. 

 On appeal, we view the evidence in the light most favorable 

 

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

designated for publication. 
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to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 So viewed, the evidence proved that on June 21, 1994, while 

working for Tower Electric Company (Tower) as an electrician, 

Real lost his balance and fell from a ladder, landing on the 

corner of a table. An ambulance transported him to the 

Alexandria Hospital, where he came under the care of Dr. Miguel 

H. Gonzalez, a thoracic and cardiovascular surgeon. 

 On June 21, 1994, Dr. Gonzalez performed a closed left 

thoracostomy to reinflate Real's left lung. On June 24, 1994, 

Dr. Gonzalez discharged Real from the hospital with final 

diagnoses of traumatic left pneumothorax (i.e., a lung puncture), 

posterior rib fractures, and mild hemothorax. On July 26, 1994, 

Dr. Gonzalez noted "good healing of the 9th and 10th left ribs." 

 On that date, Dr. Gonzalez opined that "[f]rom the chest injury 

point of view, [Real] should be able to return to a full workload 

at this point." Because Real complained of dizziness, weakness 

in both arms, and left arm pain, Dr. Gonzalez referred him to a 

neurologist for evaluation. However, between July 27, 1994 and 

October 5, 1994, Real did not seek any medical treatment. 

 On October 6, 1994, Dr. Leo Van Herpe, an orthopedic 

surgeon, examined Real. Dr. Van Herpe noted Real's persistent 

complaints of pain, but he also noted that Real made a minimal 

effort during the respiratory examination. Dr. Van Herpe 

recommended a respiratory evaluation, the results of which showed 
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normal pulmonary functioning. On October 19, 1994, Dr. Van Herpe 

wrote to Vik Brothers Insurance Group and recommended, pending 

the insurance company's approval, that Real undergo vocational 

rehabilitation in order "to get him active and back to work."1

 

Real did not seek medical treatment between October 12, 1994 and 

February 12, 1995. 

 On November 29, 1994, responding to Real's counsel's 

question regarding Real's specific dates of disability, Dr. Van 

Herpe stated that "[t]he beginning date would indeed be the date 

of his accident. The ending date would be his discharge from 

vocational rehabilitation or a date selected by me after 

reviewing his progress or lack of same in his rehabilitation 

program." 

 On February 13, 1995, Real returned to Dr. Van Herpe. Dr. 

Van Herpe noted that Real had not been to a work hardening 

program, nor had he resumed working. Dr. Van Herpe reported that 

Real's "physical examination shows a pain response out of 

proportion to the physical findings and no evidence of any 

significant persistent organic problem." Dr. Van Herpe 

recommended that Real "should be put through a work-hardening 

program and returned to the work force." Dr. Van Herpe 

recommended against any further medical treatment. 

 In his July 25, 1995 deposition, Dr. Van Herpe stated that, 

 1In his deposition, Dr. Van Herpe testified that he used the 

term "vocational rehabilitation," but that he meant "work 

hardening." 
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when he saw Real on October 6, 1994, from an orthopedic 

standpoint, he placed no restriction on Real's ability to return 

to his pre-injury work as an electrician. He noted that Real 

made no complaints of weakness or dizziness on October 6, 1994. 

Dr. Van Herpe testified that Real's October 6, 1994 complaints 

were not supported by objective testing, which showed Real's lung 

functioning was within normal limits. He testified that he 

indicated to Real that Real could perform his pre-injury job, and 

 that the only reason he recommended that Real undergo a work 

hardening program was due to Real's reluctance to get back into 

the work force. Dr. Van Herpe opined that Real "was capable of 

doing his normal job with no restrictions from the time I first 

met him." Dr. Van Herpe recommended work hardening solely to 

show Real that he was capable of performing his job, due to 

Real's fears of going back to work, not because of any orthopedic 

restrictions. Dr. Van Herpe noted that at all times, Real seemed 

resistant to returning to any type of work. He testified that if 

Real had not been recalcitrant about going back to work, Real 

could have done so without work hardening. As of the date of the 

deposition, Dr. Van Herpe no longer recommended work hardening, 

and he opined that Real should be back at work. Dr. Van Herpe 

denied ever telling Real that he could not go back to work until 

after he went through a work hardening program. Rather, he told 

Real that he could perform his pre-injury job. 

 Real testified that he did not start work hardening because 
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he was never contacted by Dr. Van Herpe with an authorization 

from the insurance company. Real has not returned to any type of 

gainful employment since the accident. 

 Based upon this record, the commission found that Real did 

not prove continuing total disability after July 26, 1994. The 

commission relied upon Dr. Van Herpe's deposition testimony. 

Unless we can say as a matter of law that Real's evidence proved 

he remained totally disabled after July 26, 1994 as a result of 

his compensable injury by accident, the commission's findings are 

binding and conclusive upon us. See Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 The commission's decision is supported by the medical 

records of Dr. Gonzalez and the medical records and testimony of 

Dr. Van Herpe. It is uncontradicted that, from the standpoint of 

Real's chest injuries sustained as a result of his compensable 

accident, Dr. Gonzalez released Real to return to his pre-injury 

work on July 26, 1994. With respect to Real's July 26, 1994 

complaints of dizziness and weakness, he chose not to seek 

further medical treatment for these complaints, and no evidence 

causally linked these complaints to his compensable injuries. In 

addition, when Real first saw Dr. Van Herpe on October 6, 1994, 

he made no complaints of dizziness or weakness. On that date, 

Dr. Van Herpe found no objective evidence to support Real's 

complaints of being unable to breathe. In his deposition, Dr. 

Van Herpe testified unequivocally that Real was able to perform 
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his pre-injury work from the first time he examined Real, and 

that he told Real that he could perform his pre-injury job. The 

commission was entitled to conclude, based upon Dr. Van Herpe's 

testimony, that his suggestion that Real undergo work hardening 

was necessitated by Real's refusing to go back to work, and not 

by any actual disability related to Real's compensable injury by 

accident. 

 For these reasons, we cannot find as a matter of law that 

Real's evidence sustained his burden of proving total disability 

after July 26, 1994. Accordingly, we affirm the commission's 

decision. 

 Affirmed.