COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Overton 

SUE ANN LANE 

 MEMORANDUM OPINION*

v. Record No. 2697-01-3 PER CURIAM 

 APRIL 2, 2002 

ALCOA BUILDING PRODUCTS AND 

 LIBERTY MUTUAL FIRE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Thomas W. Dixon, Jr.; Nelson, McPherson, 

Summers & Santos, L.C., on brief), for 

appellant. 

 (R. Ferrell Newman; Thompson, Smithers, 

Newman, Wade & Childress, on brief), for 

appellees. 

 Sue Ann Lane (claimant) contends the Workers' Compensation 

Commission erred in finding that she failed to prove she was 

totally disabled after April 5, 1999 as a result of her March 

16, 1993 compensable back injury and, therefore, she was 

required to market her residual work capacity, which she failed 

to do.1 Upon reviewing the record and the parties' briefs, we 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

1

 Claimant did not appeal the commission's findings that she 

did not suffer a new injury by accident on April 5, 1999 and 

that any current disability was the result of her 1993 

compensable injury by accident. In addition, claimant did not 

challenge the commission's ruling that she unjustifiably refused 

selective employment on April 5, 1999. 
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conclude that this appeal is without merit. Accordingly, we 

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

 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. See Tomko v. Michael's 

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

 In granting employer's application and suspending 

claimant's benefits as of April 5, 1999 based upon her failure 

to cure her unjustified refusal of selective employment, the 

commission found as follows: 

[C]laimant argues that the evidence shows 

she is entitled to temporary total 

disability benefits after the [sic] April 5, 

1999, because her disability rendered her 

incapable of any work. The claimant relies 

on her testimony and that of her husband 

regarding her condition even before this 

April 1999 incident. They testified that 

she was very limited in performing her 

household chores, had pain while sitting or 

standing, and was in constant pain during 

her one and one half years at Borg Warner 

when she did the light duty position. 

 Significantly, the claimant testified 

that her condition was essentially the same 

before and after the April 1999 incident. 

The claimant was released to light duty 

work, and worked in that capacity after 

April 5, 1999. The medical evidence 

supports a finding that she was capable of 

this light duty work. 
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 On April 5, 1999, the claimant was 

suspended for poor job performance. After 

April 5, 1999, the claimant sustained some 

disability from work, as indicated by the 

disability slips dated April 5, 1999 and 

April 13, 1999, but the medical records do 

not relate this disability to her 1993 work 

accident. Once her period of disability 

ended, which was after the suspension, the 

claimant failed to report to her selective 

employment, and she was terminated. 

 The medical evidence does not indicate 

any disability from work after the April 13, 

1999 work slip until Dr. [William G.] 

Hatfield's May 5, 2000 letter to claimant's 

counsel. Dr. Hatfield did not treat the 

claimant between 1996 and May of 2000. In 

1997, Dr. Hatfield's partner, Dr. [Antonio 

E.] Valencia, returned the claimant to work. 

Other medical evidence and the claimant 

[sic] performance of light duty work 

supported this release for one and one half 

years. Moreover, as the Deputy Commissioner 

noted, no corresponding medical records 

support Dr. Hatfield's opinion that the 

claimant could perform no work and that this 

was related to her 1993 work injury. For 

these reasons, the Deputy Commissioner's 

finding that the claimant refused selective 

employment is affirmed. 

 The claimant had a duty to market her 

residual capacity and secure employment in 

order to cure that refusal. The evidence 

shows that despite her residual capacity, 

the claimant has not cured her refusal. The 

claimant candidly admitted that she has not 

looked for work because she believes that 

she is incapable of work. The medical 

evidence contradicts her belief, and she had 

a duty to cure her refusal of selective 

employment. 

 The commission's findings are amply supported by claimant's 

testimony that her pain remained the same both before and after 

the April 5, 1999 incident, her ability to perform the 
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light-duty job as a telephone operator for one and one-half 

years, Dr. Valencia's 1997 light-duty work release, the 1997 

functional capacities evaluation, and the medical records of 

Drs. Valencia and E. Franklin Pence, Jr. As fact finder, the 

commission was entitled to reject Dr. Hatfield's May 5, 2001 and 

May 15, 2001 opinions, which were not supported by records of 

any corresponding medical examination. "Medical evidence is not 

necessarily conclusive, but is subject to the commission's 

consideration and weighing." Hungerford Mechanical Corp. v. 

Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). 

 Based upon this record, we cannot find as a matter of law 

that claimant's evidence proved she was totally disabled after 

April 5, 1999 as a result of her compensable 1993 injury by 

accident. Accordingly, we affirm the commission's decision. 

Affirmed.