HOY CONST., INC. v. Flenner

• Decision Date: 02 May 2000
• Docket Number: Record No. 2229-99-1.,Record No. 2152-99-1
• Citation: HOY CONST., INC. v. Flenner, 528 S.E.2d 148, 32 Va. App. 357 (Va. App. 2000)
• Court: Virginia Court of Appeals
• Parties: HOY CONSTRUCTION, INC. and Liberty Mutual Fire Insurance Co. v. Howard FLENNER. Howard Flenner v. Hoy Construction, Inc. and Liberty Mutual Fire Insurance Co.

528 S.E.2d 148

32 Va. App. 357

HOY CONSTRUCTION, INC. and Liberty Mutual Fire Insurance Co. v.Howard FLENNER.

Howard Flenner v.Hoy Construction, Inc. and Liberty Mutual Fire Insurance Co.

Record Nos. 2152-99-1, 2229-99-1.

Court of Appeals of Virginia, Chesapeake.

May 2, 2000.

Bradford C. Jacob(Taylor & Walker, P.C., on briefs), Norfolk, for Hoy Construction, Inc. and Liberty Mutual Fire Insurance Co.

C. Allen Riggins(Parker, Pollard & Brown, P.C., on briefs), Virginia Beach, for Howard Flenner.

Present: FITZPATRICK, C.J., and ELDER and BRAY, JJ.

BRAY, Judge.

Hoy Construction, Inc. and Liberty Mutual Fire Insurance Co.(collectively employer) appeal an award of temporary total disability benefits to Howard Flenner(claimant), upon his change of condition application.Employer contends that the award is barred by Code§ 65.2-510 and, moreover, is unsupported by the evidence.Claimant cross-appeals, complaining that the commission erroneously construed Code§ 65.2-510 to preclude temporary partial disability compensation, following the award of temporary total disability benefits.Agreeing both with the commission's application of the statute and the award of benefits to claimant, we affirm the decision.

Claimant suffered an industrial injury on September 2, 1995.Employer accepted the resulting claim as compensable, and claimant received temporary total disability benefits.On April 8, 1996, Dr. David Biondi, a neurologist, released claimant to restricted work, but claimant refused employer's offer of selective employment, prompting employer to request the commission to terminate benefits.On August 20, 1996, the commission granted employer relief, effective April 12, 1996, noting that "claimant conceded that he refused the selective employment due to physical problems unrelated to the work injury" and had "offered no ... justification" for his conduct.Claimant did not appeal the decision or cure such refusal within six months of April 12, 1996.

On May 7, 1997, claimant filed the instant application with the commission, alleging a change of condition and seeking temporary total disability benefits, commencing February 24, 1997, through October 13, 1997, with temporary partial benefits thereafter.Employer asserted Code§ 65.2-510¹ as an absolute bar to relief and, also, challenged the claim on the merits.Claimant countered that the statute was inapplicable both to a total disability that occurred after an unjustified refusal of selective employment and to a subsequent partial disability.

Following consideration of the record and arguments on appeal, the commission determined that claimant had suffered a temporary total disability after his unjustified refusal of selective employment and awarded attendant benefits, reasoning that the bar of Code§ 65.2-510 is inapplicable to a subsequent total disability.However, the commission further concluded that the statute precluded benefits for any subsequent partial disability and denied such claim.Both employer and claimant appeal.

I.Employer's Appeal, RecordNo. 2152-99-1

While the instant appeal was pending in this Court, we decided, in Southwest Virginia Tire, Inc., et al. v. Bryant,31 Va.App. 655, 525 S.E.2d 563(2000), that "Code§ 65.2-510 does not have any bearing upon a change-in-condition application for an employee who becomes totally disabled as a result of the industrial injury."Id. at 659-60, 525 S.E.2d at 565.Thus, the commission correctly ruled that the statute does not bar the disputed award, upon proof of a change in condition resulting in temporary total disability, notwithstanding claimant's failure to cure the earlier unjustified refusal of selective employment within six months.

Employer, however, also contends that claimant's evidence failed to prove a total disability for the period in issue."Following established principles, we review the evidence in the light most favorable to the prevailing party."R.G. Moore Bldg. Corp. v. Mullins,10 Va.App. 211, 212, 390 S.E.2d 788, 788(1990)."Factual findings of the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal."Southern Iron Works, Inc. v. Wallace,16 Va.App. 131, 134, 428 S.E.2d 32, 34(1993)."If there is evidence, or reasonable inferences can be drawn from the evidence, to support the Commission's findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding."Morris v. Badger Powhatan/Figgie Int'l, Inc.,3 Va. App. 276, 279, 348 S.E.2d 876, 877(1986)."This rule applies when an expert's opinion contains internal conflict."Greif Companies/Genesco, Inc. v. Hensley,22 Va.App. 546, 552, 471 S.E.2d 803, 806(1996).

In awarding claimant temporary total disability benefits, the commission reviewed the deposition of Dr. Robert Hansen, a neurologist, together with the related reports, notes and correspondence of Dr. David Biondi and Dr. Kerri L. Wilkes, a "headache specialist."While we concur in the commission's observation that "it is difficult to determine Dr. Hansen's true opinion about claimant's ability to work,"we also agree that sufficient evidence established a total disability for the period.

On April 18, 1997, Dr. Hansen noted that claimant had

not been cleared to return to work.He has been felt in the past, both by Dr. Biondi and by myself, to have achieved maximal medical improvement (MMI)....I think it is appropriate ... to have an FCE [Functional Capacity Evaluation] performed.Return to work recommendation can be generated on the basis of the FCE.

Dr. Hansen further recorded, on April 30, 1997, that claimant had

been followed ... for some time with axial pain and headaches....The pain has been very difficult to control.Recently, he has had more pain and headaches . . . [and] was deemed by me to be unable to return

...