COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

ELIZABETH H. LEWIS 

v. Record No. 2529-94-4 MEMORANDUM OPINION*

 PER CURIAM 

HAMBURGER HAMLET, INC. MARCH 12, 1996 

AND 

TRANSPORTATION INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Elizabeth H. Lewis, pro se, on brief). 

 No brief for appellees. 

 Elizabeth Lewis (claimant) contends that the Workers' 

Compensation Commission (commission) erred in (1) calculating her 

average weekly wage by not including wages she earned while 

performing similar employment for another employer; (2) finding 

that her left shoulder condition was not causally related to her 

compensable September 23, 1992 injury by accident; and (3) 

finding that she did not prove she suffered any disability after 

November 15, 1992 (other than from May 26, 1993 through June 6, 

1993) causally related to her compensable injury by accident. 

Upon reviewing the record and claimant's brief, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the commission's decision. Rule 5A:27. 

 

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

designated for publication. 
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Average Weekly Wage

 "[W]hen an employee is injured on one job while in 

concurrent employment, the average weekly wage compensated is 

based on the combined earnings of both jobs if, but only if, the 

employments are related or similar." County of Frederick Fire 

and Rescue v. Dodson, 20 Va. App. 440, 442, 457 S.E.2d 783, 784 

(1995) (emphasis added). 

 On September 23, 1992, claimant sustained a compensable 

injury by accident while working full-time as a waitress for 

Hamburger Hamlet (Hamlet). No evidence proved that claimant was 

working for any employer, other than Hamlet, at the time of her 

September 23, 1992 compensable injury by accident. Accordingly, 

the commission did not err in calculating claimant's average 

weekly wage based solely on the wages she earned while working 

full-time for Hamlet. 

Left-Shoulder Condition and Disability

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

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

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

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

sustained her burden of proof, the commission's findings are 

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

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

 After her September 23, 1992 accident, claimant sought 

medical treatment from Dr. Samir Azer for complaints of lower 
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back and right ankle pain. On October 7, 1992, Dr. Azer 

diagnosed a lumbosacral strain and right ankle strain. In his 

November 11, 1992 office notes, Dr. Azer released claimant to 

return to work. Between November 21, 1992 and May 20, 1993, 

claimant continued to work as a waitress for Hamlet and did not 

seek medical treatment. 

 On May 21, 1993, claimant sought treatment from Dr. Sameer 

B. Shammas. At that time, claimant complained of severe left 

shoulder pain of a few days duration. She did not report a new 

injury to Dr. Shammas. Rather, she told him that her symptoms 

occurred gradually. Dr. Shammas diagnosed severe left shoulder 

girdle strain most likely from repeated and persistent heavy 

lifting. Dr. Shammas advised claimant to remain out of work. 

 On May 26, 1993, claimant returned to Dr. Azer complaining 

of back pain and left shoulder pain. An MRI of claimant's back 

revealed a minimal disc bulge at L4-5. An MRI of her left 

shoulder revealed mild, chronic changes and degenerative cysts of 

the humeral head. Dr. Azer released claimant to return to work 

without restrictions as of June 7, 1993. Dr. Azer later opined 

that claimant's left shoulder was most likely aggravated by heavy 

lifting in her job. 

 Beginning on June 8, 1993, claimant sought treatment for her 

shoulder and back condition from Dr. Eric Havens, an osteopath. 

Dr. Havens indicated that claimant was capable of part-time work 

with no lifting over twenty pounds. Dr. Havens did not render an 
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opinion as to the cause of claimant's disability. Claimant 

worked part-time for Hamlet from November 1992 through July 19, 

1993, when she stopped working due to back pain. 

 The commission found that claimant did not prove that she 

sustained a left shoulder injury as a result of her compensable 

September 23, 1992 injury by accident. Claimant did not seek 

medical treatment between November 1992 and May 1993. There was 

an eight-month time gap between the occurrence of her accident 

and her first report of left shoulder pain. In addition, no 

medical evidence linked claimant's left shoulder condition to her 

compensable injury by accident. Based upon this record, we 

cannot find as a matter of law that claimant proved that her left 

shoulder condition was causally related to her compensable injury 

by accident. 

 The commission also ruled that, other than the period 

between May 26, 1993 and June 6, 1993, claimant did not prove she 

suffered any work incapacity after November 14, 1992 causally 

related to her compensable back and ankle injuries. Based upon 

Dr. Azer's release of claimant to return to work as of November 

11, 1992 and the lack of any further medical treatment until May 

21, 1993, the commission did not err in denying claimant's 

request for an award of temporary partial disability benefits 

from November 15, 1992 through May 21, 1993. After November 11, 

1992, claimant did not seek medical treatment again for back pain 

until May 26, 1993. Dr. Azer's records support the commission's 
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finding that claimant was totally disabled from May 26, 1993 

through June 6, 1993 due to her injury by accident. Finally, the 

commission, in its role as fact finder, was entitled to accept 

Dr. Azer's opinion that claimant was not disabled after June 6, 

1993 and to reject Dr. Havens's contrary opinion. Accordingly, 

the commission did not err in refusing to award disability 

benefits to claimant after June 6, 1993. 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.