COURT OF APPEALS OF VIRGINIA

Present: Judges Haley, Beales and Alston Argued at Alexandria, Virginia

MARK A. WINDSOR MEMORANDUM OPINION * BY v. Record No. 0790

- 11

- 4 JUDGE RANDOLPH A. BEALES DECEMBER 20, 2011 LOOMIS FARGO & COMPANY AND

INDEMNIT Y INSURANCE COMPANY OF NORTH AMERICA

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION John B. Delaney ( Delaney, McCarthy & Colton, P.C. , on brief s ) , for appellant. Angela F. Gibbs ( Dana L. Plunkett ; Midkiff, Muncie & Ross, P.C. , on brief) , fo r appellee s . Mark A. Windsor (appellant) appeals t he decision by the Workers’ Compensation
Comm ission (the c ommission) that appellant was not entitled to temporary total disability benefits after October 7, 2009. Appellant argues on appeal that the c om mission erred when it found that it was appellant’s burden to prove that he remained total ly disab led after that date.
We disagree with appellant’s argument , and, therefore, for the following reasons, we affirm the

c ommission’s decision

. I. BACKGROUND
A

. Compensable Injury and Return to Light

- Duty Employment Prior to suffering a compensable injury on February 21, 2008, appellant was employed as a driver for Loomis Fargo & Company (employer). On that date, another vehicle struck

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.- 2

- appellant’s company vehi cle from behind, resulting in sev eral compensable injuries to appellant , including damage to a disc in his back . Employer agreed to pay temporary total disability benefits beginning on February 29, 2008. This initial award of t emporary total disability ( “the May 23, 2008 temporary total disability award”) is not directly at issue in this appeal.
A ppellant returned to light

- duty work for employer as a dispatcher on June 29, 2009, pursuant to the instructions of his treating physician, Dr. Colley. Appellan t ceased this light

- duty employment on August 17, 2009, also pursuant to Dr. Colley’s instructions. On September 23, 2009

– the date of Dr. Colley’s last evaluation of appellant, according to the c ommission’s record

– Dr. Colley instructed appellant to “[ c] ontinue with out of work status for now with

re - assessment ” of that status two weeks later. However, t here is no indication from the

c ommission’s record that such a reassessment occurred two weeks after September 23, 2009

– i. e., on October 7, 2009

– or at any time thereafter.
B. Employer’s Change

- in

- Condition Application On December 30, 2009, employer filed an a pplication for a hearing in the c ommission , alleging a change in condition

– spe cifically, that appellant had returned to light

- duty work o n J une 29, 2009 and, thus, w as no longer total ly disabled

. On January 19, 2010, the c ommission made an initial finding of “probable cause” supporting the employer’s application. Pursuant to the c ommission’s rules, t he May 23, 2008 temporary total disability award was preliminarily suspended pending an evidentiary hearing. At the evidentiary hearing before the deputy commissioner, e mployer introduced medical records from Dr. Colley indicating that appellant had been released for light

- duty work on May 6, 200 9, with instructions that appellant not lift or carry more than 30 pounds. Employer also- 3

- introduced Dr. Colley’s progress notes from June 3, 2009, July 1, 2009, and July 29, 2009. 1 In addition, William Elliot, a ppellant ’s supervisor when he returned to light

- duty work, testified at the evidentiary hearing that a ppellant served as a truck dispatcher during appellant’s period of light

- duty employment

. According to Elliot, a ppellant could perform this job either sitting or standing, and he was not require d to lift anything at all. Elliot testified that a ppellant stopped working in August 2009.
A ppellant also introduced several progress notes from Dr. Colley

. In the first of these progress notes, dated August 24, 2009 , Dr. Colley indicated that a ppellant should be “taken out of work for a week and re

- assess[ed] for return to work next week.” “Maybe just a brief rest break will help,” Dr. Colley wrote in the August 24, 2009 progress note . “If no improvement we will need to consider other options.” Dr. C olley’s next progress note, dated September 2, 2009, indicated that a ppellant was “unable to return back to work in a light duty status at this time due to the exacerbation in symptoms.” Dr. Colle y’s final progress note in the c ommission record, dated Sep tember 23, 2009, stated, “Follow up in 2 weeks [i.e., October 7, 2009] for re

- evaluation and medication renewal. Continue with out of work status for now with re

- assessment at that time.”
C. Deputy Commissioner’s Rulings The deputy commissioner’ s opin ion noted the parties’ stipulation that appellant returned to light

- duty employment from June 29, 2009 to August 17, 2009. Based on this stipulation, the

1 Dr. Colley’s progress notes from June 3, 2009 (before appellant returned to light

- duty work) and July 1, 2009 ( shortly after appellant began light

- duty work) contained additional light

- duty instructions, such as that appellant should mainly be in a stationary seated position at work, so as to avoid aggravating the disc injury. The last of Dr. Col ley’s progress notes introduced by employer , dated July 29, 2009, indicated that appellant “does his job but he hurts” and that appellant was “adhering to his restrictions but with difficulty.” At that time, Dr. Colley instructed appellant to continue wit h pain medication and scheduled a follow

- up visit in four weeks.- 4

- deputy commissioner found that employer satisfied its burden of proving a change in condition under C ode § 65.2

- 708(A). 2 The deputy commissioner then terminated the May 23, 2008 temporary total disability award effective June 29, 2009

– the date appellant returned to light

- duty employment. Significantly, appellant never requested full c ommission review of the deputy commissioner’s decision to terminate the May 23, 2008 temporary total disability award. Given that appellant’s light

- duty employment ceased on A ugust 17, 2009, pursuant to
Dr. Colley’s instructions, the deputy commissioner then awarded appell ant a new period of temporary total disability benefits “from August 17, 2009 and continuing until conditions justify modification thereof.” Employer requested full c ommission review of the deputy commissioner’s decision to award appellant this new period of temporary total disability benefits.
D. Full Commission Review
On review, the full c ommission made several rulings that are pertinent to this appeal. First, a majority of the c ommission ers found that the deputy commissioner’s decision to terminate t he May 23, 2008 temporary total disability award was final because a ppellant did not seek full c ommission review of this ruling by the deputy commissioner. T he c ommission majority also found that the deputy commissioner had authority to consider appellant ’s entitlement to a new period of workers’ compensation benefits after his light

- duty employment

2 That statute states, in pertinent part: Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the award. ” Code § 65.2

- 708(A).- 5

- ended on August 17, 2009 (even though a ppellant did not file a new application for benefits )

. However, the c ommission majority found that the deputy commiss ioner erred in requiring employer to prove that appellant was not totally disabled on August 17, 2009 o r at any time thereafter. The c ommission explained: We can conceive of no reason why the burden of proof in this case should be any different than the b urden of proof in every other situation where a claimant seeks benefits following termination of an award, and we hold that such burden of proof rests with the claimant. The c ommission majority then found that appellant satisfied his burden of proving a
t emporary total disability from August 17, 2009 to October 7, 2009

– but not after October 7, 2009. The c ommission noted that October 7, 2009 was “ the date the claimant was to return to Dr. Colley so that his ability to r eturn to work could be assessed.” Since there was no indication in the record that appellant was evaluated by Dr. Colley on October 7, 2009 (or at any time after September 23, 2009), the c ommission majority declined to “presume ongoing disability in the absence of supporting medical eviden ce .” Thus, the c ommission award ed appellant temporary total disability benefits , effective on August 17, 2009

– but only through October 7, 2009

. II. ANALYSIS On appeal to this Court, appellant challenges the c ommission’s finding that he was not entit led to temporary total disability benefits after October 7, 2009. A ppellant argues that the

c ommission erred when it assigned him the burden of proving a new period of temporary total disability following the termination of the May 23, 2008 temporary tota l disability award. “The question of which party bears the burden of proof is a question of law.” Mulford v. Walnut Hill Farm Group, LLC , 282 Va. 98, 111, 712 S.E.2d 468, 476 (2011).- 6

- A. This Court’s Decision in Telesystems, Inc. v. Hill is Not Control ling Here Appellant argues that this Court’s decision in Telesystems, Inc. v. Hill , 12 Va. App. 466,
404 S.E. 2d 523 (1991), is controll ing on this issue and dictates a finding that employer retained the burden of proof throughout the entirety of the c ommi ssion proceedings. The c ommission found that the circumstances in Hill were distinguishable, and, therefore, found that it was not bound by this Court’s decision in that case. We agree with the r easoning and conclusion of the

c ommissio n . In Hill , Hill’s employer (Telesystems) filed an application for a hearing in the

c ommission alleging that Hill was no longer entitled to temporary total disability benefits because Hill briefly worked in a light

- duty capacity with another employer. Pursuant to the

c ommis sion’s rules, the temporary total disability award was suspended pending an evidentiary hearing. Following the evidentiary hearing, the deputy commissioner ordered the full resumption of Hill ’s temporary total disability benefits (with a credit given to T elesystems to
account for Hill’s light

- duty earnings), and the full c o mmission affirmed that decision. Hill , 12
Va. App. at 468

- 69, 404 S.E.2d at 524

- 25. On appeal, this Court discussed the limited effect of suspending an open award , pending an evidenti ary hearing on a change

- in

- condition application . This Court explained that such a suspension of benefits is “simply preliminary and temporary, i ntended to protect both parties’ interests until the commission resolves the noticed matter on its merits. ” I d. at 470, 404 S.E.2d at 526. Given that Hill’s award was only preliminarily suspended

– but not actually terminated

– this Court held, “ The burden remained with the employer, Telesystems in this case, to prove an actual change in condition and the extent of change. ” Id. at 472, 404 S.E.2d at 526. This Court then affirmed the c ommission’s finding that Telesystems failed to satisfy this burden of proving a change in condition. Id. at 472, 404 S.E.2d at 526

- 27.- 7

- Th e case before us today presents a very dif ferent scenario than Hill . The only similarity between this case and Hill is that appellant’s May 23, 2008 temporary total disability award also was suspended preliminarily, pending an evidentiary hearing on employer’s change

- in

- condition application. Ho wever

– unlike in Hill

– employer here actually satisfied its burden of proving a change in condition based on the parties’ stipulation that appellant returned to light

- duty employment on June 29, 2009. T he deputy commissioner in this case then terminated the May 23, 2008 temporary total disability award. Conversely, Hill’s temporary total disability was never terminated (but was instead fully reinstated by the c ommission). Because Hill involved only the preliminary suspension of a temporary total disabi lity award

– but not the actual termination of that award on the merits

– the decision in Hill simply is not controlling on the very different circumstances in this case.
B. The Termination of the May 23, 2008 Temporary Total Disability Award is Final

Furthermore, this Court cannot now consider on appeal the deputy commissioner’s decision to terminate the May 23, 2008 temporary total disability award. A s the c o mmission found, appellant never sought full c ommission review of that decision by the deputy commissioner. See Comm’n Rule 3.1 (“Failure of a party to assign any specific error in its request for review may be deemed by the Commission to be a waiver of the party ’ s right to consideration of that error.”). Given this procedural posture, the c ommis sion ruled, “Since the claimant did not appeal the termination of the May 23, 2008 award, tha t termination is final.” Because the full c ommission never considered the termination of the May 23, 2008 temporary total disability award on the merits, this Co urt has “no commission ruling to review” on this issue. Hodnett v. Stanco Masonry, Inc. , 58 Va. App. 244, 253, 708 S.E.2d 429, 434 (20 1 1 ). Consequently, this Court “cannot consider” on appeal the termination of the May 23, 2008 temporary total disability award. Id. ; see Rule 5A:18.- 8

- C. The Full Commission Did Not Err in Finding that Appellant Failed to Prove Temporary Total Disability After October 7, 2009 In this case , the deputy commissioner terminated the May 23, 2008 temporary total disability awar d , and the termination of that award is now final because appellant never sought full c ommission review of the deputy commissioner’s decision. Given this posture, the

c ommission did not err when it found that appellant assumed the burden of proving any fu rther period of temporary total disability. Under settled law, “‘a party seeking compensation bears the burden of proving his disability and the periods of that disability .’” Uninsured Employer’s Fund v. Clark , 26 Va. App. 277, 285

- 86, 494 S.E.2d 474, 47 8 (1998) (emphasis added) (quoting Marshall Erdman & Assocs., Inc. v. Loehr , 24 Va. App. 670, 679 , 485 S.E.2d 145, 149 (1997));

see Lot Masters v. Gibbs , 11 Va. App. 70, 72, 396 S.E.2d 395 , 396 (1990) (“ Had the commission vacated or terminated the prior te mporary total award, the burden would have been on Gibbs to file an application and produce evidence establishing continuing disability. However, the commission did not terminate the prior award. ”). In addition , while the c ommission found that appellant satisfied his burden of proving a temporary total disability begin ning on August 17, 2009 ( when appellant ceased light

- duty employment pursuant to Dr. Colley’s instructions ), t he c ommission also found that appellant failed to prove that the temporary tota l disability continued after October 7, 2009

– i.e., two weeks following appellant’s last visit with Dr. Colley that is apparent from the c ommission’s record. We “must defer” to these findings by the c ommission because they are “ supported by credible evid ence in the record. ” D iaz v. Wilderness Resort Ass’ n, 56 Va. App. 104, 114 , 691 S.E.2d 517, 522 (2010) ; see Apple Constr. Corp. v. Sexton , 44 Va. App. 458, 46 0, 605 S.E.2d 351, 352 (2004) (explaining that the evidence is viewed in the light most favorable to the prevailing party in the c ommission)

.- 9

- At the evidentiary hearing, appellant presente d three progress notes from Dr. Colley

– dated August 24, September 2, and Septemb er 23, 2009. All three pro gress notes reflected that appellant was currently unabl e to return to work

– but also that Dr. Colley intended to reassess that conclusion after a short period of time

. T he August 24 , 2009 progre ss note states that appellant is scheduled to return to Dr. Colley’s office for a follow

- up appointment on Septemb er 2 for an evaluation on “return to work [versus] consideration of return to therapy.” The September 2 , 2009 progress note then indicates tha t appellant is to undergo “a brief course” of physical therapy “before releasing back to work,” with a reevaluat ion scheduled for September 23, 2009. Finally, t he September 23 , 2009 progress note state s , “ Follow up in 2 weeks for

re - evaluation and medication renewal. Continue with out of work status now with re

- assessment at that time. ” (E mphasis added). Given D r. Colley’s progress notes , the c ommission found: Dr. Colley, as of September 23, 2009, must have believed that the claimant’ s work status could change, as of October 7, 2009, otherwise there would be no reason to assess it again at that time. The claimant never fo llowed up with Dr. Colley after September 23, 2009, and his work status was accordingly never re

- assessed. Indeed, after the September 23, 2009 record from Dr. Colley, there are no medical records relating to any treatment received by the claimant through May 24, 2010, the date of the hearing below, a period of eight months. Unwilling to “ presume ongoing disability in the absence of supporting medical evidence ,” the c ommission awarded appellant temporary total disability benefits only “ through
Oc tober 7, 2009, the date the claimant was to return to Dr. Colley so that his ability to r eturn to

w ork could be assessed.” T he c ommission noted, “ It would be nothing more than s peculation to conclude that the claimant remained totally disabled through the [May 24, 2010] hearing date- 10

- eight months later. ” Viewing the evidence in the light most favorable to employer , as the prevailing party below, see Apple Constr. Corp. , 44 Va. App. at 46 0, 605 S.E.2d at 352 , the

c ommission ’s decision to award appellant tem porary total disability benefits only through October 7, 2009 , therefore, was supported by credible evidence in the record. See D iaz , 56
Va. App. at 114, 691 S.E.2d at 522.
III. CONCLUSION Appellant never sought full c ommission review of the deputy com missioner’s decision to terminate the May 23, 2008 temporary total disability award effective on June 29, 2009

– the date that the parties stipulated that appellant returned to light

- duty work. Under these circumstances, the c ommission did not err in find ing that it was appellant’s burden to establish a

new period of temporary total disability

– and credible evidence supports the c ommissio n ’s finding that appellant failed to prove that he was totally disabled after October 7, 2009. Accordingly, fo r the fo regoing reasons, we affirm the decision of the c ommission

.

Affirmed

.