COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

BRENDA SUE TRAIL 

 MEMORANDUM OPINION*

v. Record No. 1103-96-3 PER CURIAM 

 OCTOBER 15, 1996 

RALLY'S 

AND 

MANUFACTURERS ALLIANCE 

 INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Brenda Sue Trail, pro se, on brief). 

 (Richard D. Lucas; Carter, Brown & Osborne, 

on brief), for appellees. 

 Brenda Sue Trail contends that the Workers' Compensation 

Commission erred in limiting her benefits to one week of 

disability. She contends that she was entitled to receive 

(1) compensation benefits for periods of partial incapacity 

between September 16, 1994 and February 7, 1995; and (2) the cost 

of medical treatment rendered to her after September 26, 1995 or 

for any emergency room treatment. Upon reviewing the record and 

the briefs of the parties, we conclude that this appeal is 

without merit. Accordingly, we summarily affirm the commission's 

decision. Rule 5A:27. 

 I. 

 The commission found from the evidence that Trail had back 

surgery in 1981 and continued to experience chronic back pain. 

 

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

designated for publication. 
 2 

On September 7, 1994, Trail suffered a compensable injury by 

accident when she slipped on a wet floor and fell onto her left 

buttock. An emergency room physician diagnosed her injury as a 

contused left buttock. 

 On September 12, 1994, Trail began treatment with Dr. Hetzal 

Hartley, who diagnosed her injury as a contused left hip and an 

acute low back strain. Dr. Hartley excused Trail from her preinjury job as a fast food prep worker from September 12, 1994 

through September 16, 1994. On September 16, 1994, Dr. Hartley 

released Trail to "modified duty" not involving lifting more than 

twenty pounds or bending to the floor. On September 30, 1994, 

Dr. Hartley noted that Trail's pain had subsided and released her 

to full duty. 

 In November 1994, Trail returned to Dr. Hartley, complaining 

of recurrent back pain. Dr. Hartley diagnosed Trail as having 

recurrent low back strain and placed her on "modified duty." Dr. 

Hartley continued to treat Trail, placing her on light-duty 

status until December 28, 1994, when he again released her to 

full duty because her low back pain had subsided. On January 3, 

1995, after Trail again complained of pain, Dr. Hartley placed 

Trail on light duty and ordered an MRI. On February 7, 1995, Dr. 

Hartley again released Trail to full duty. He reiterated his 

decision to release Trail on February 23, 1995 and March 1, 1995. 

 Dr. Hartley referred Trail to Dr. Murray Joiner, a physiatrist. 

 Dr. Joiner diagnosed Trail as suffering from pain/piriformis 
 3 

syndrome, left lower extremity sciatica, and a pre-existing 

unrelated disk defect. Dr. Joiner treated Trail with various 

conservative modalities and also referred her to two 

neurosurgeons, Dr. James M. Vascik and Dr. Ward W. Stevens. 

Neither Dr. Vascik nor Dr. Stevens viewed Trail as a surgical 

candidate. Instead, both doctors recommended that she continue 

under Dr. Joiner's conservative care. 

 Trail repeatedly sought treatment at the hospital emergency 

room for subjective complaints of pain. Emergency room personnel 

advised her to follow up with Dr. Joiner. Dr. Joiner noted that 

he could not find any medical reason for Trail's multiple 

emergency room visits, and he concluded that Trail was a "symptom 

magnifier." His conclusions were based upon her benign physical 

examination and the absence of any findings on objective testing. 

 On September 26, 1995, Dr. Joiner released Trail to full duty. 

He reported "no medical explanation for her ongoing complaints" 

and "no reason for ongoing medical intervention." Dr. Joiner 

opined that Trail's complaints and her apparent psychological 

problem were unrelated to her compensable injury. 

 After Dr. Joiner released Trail, she continued to seek 

treatment at the emergency room. As a result of one of these 

visits, Trail was referred to Dr. Thomas Shuler, an orthopedist. 

 On October 30, 1995, Dr. Shuler indicated that he did not find 

any "orthopedic surgical problem." 

 On January 15, 1996, Dr. Joiner indicated that Trail had 
 4 

received "the full [gamut] of treatment intervention including 

passive physical therapy interventions, conditioning programs, 

use of multiple modalities, extensive soft tissue work, multiple 

trigger point injections, and nerve blocks." He opined that 

Trail exaggerated her disability on a functional capacity 

evaluation and that her numerous visits to the emergency room had 

unreasonably burdened the health care system. Dr. Joiner 

concluded that Trail represented "a case of frank symptom 

magnification." 

 II. 

 Trail bore the burden of proving that her disability was 

causally related to her compensable injury by accident. She also 

bore the burden of showing that her emergency room medical 

treatment was necessary, causally related to her compensable 

injury by accident, and necessitated by an emergency. See Payne 

v. Master Roofing & Siding, Inc., 1 Va. App. 413, 415, 339 S.E.2d 

559, 560 (1986). The medical records and opinions of Drs. 

Hartley and Joiner amply support the commission's finding that 

Trail failed to prove that her medical treatment and disability 

after September 26, 1995 were causally related to her compensable 

injury. In addition, Dr. Joiner's opinion that Trail's emergency 

room visits were not medically necessary supports the 

commission's decision that employer was not responsible for the 

cost of such treatment. 

 As a partially disabled employee, Trail bore the burden of 
 5 

proving that she made a reasonable good faith effort to procure 

suitable work. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. 

App. 459, 464, 359 S.E.2d 98, 101 (1987). Trail testified that 

she applied for jobs at fast food restaurants, supermarkets, and 

motels. All of the positions involved duties similar to her preinjury job and were incompatible with her physical restrictions. 

 Based upon her testimony, the commission upheld the deputy 

commissioner's finding that Trail did not apply for these jobs in 

good faith, "but merely to pursue her own aims." 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). 

 Thus, credible evidence in this record supports the 

commission's award of temporary total disability benefits for the 

period of September 9, 1994 through September 16, 1994, and the 

commission's refusal to award disability benefits for any other 

period of time on the ground that Trail did not make a good faith 

effort to market her residual work capacity. The commission also 

appropriately refused to hold employer responsible for the cost 

of Trail's emergency room visits or for any medical treatment 

rendered after September 26, 1995. 

 III. 

 After the deputy commissioner's January 19, 1996 decision, 

Trail filed various receipts, medical bills, medical reports, and 

letters from lay witnesses with the commission. In addition, 
 6 

Trail later filed various receipts, medical records, and medical 

bills. However, Trail did not file a petition, required pursuant 

to Rule 3.3, requesting the full commission to consider these 

documents on review as after-discovered evidence. Trail also has 

not alleged any basis upon which these documents could qualify as 

after-discovered evidence. See Williams v. People's Life Ins. 

Co., 19 Va. App. 530, 532, 452 S.E.2d 881, 883 (1995). 

Accordingly, in rendering our decision, we did not consider those 

documents. We can only consider evidence that was properly 

before the commission when it made its decision. 

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

 Affirmed.