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the Virginia Court of Appeals.
DICKENSON COUNTY SCHOOL BOARD, et al.
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Record No. 1344-03-3
GENE LEIGHTON SMELCER
DICKENSON COUNTY SCHOOL BOARD AND
TENNESSEE INSURANCE GUARANTY ASSOCIATION
ON BEHALF OF RELIANCE INSURANCE COMPANY
SEPTEMBER 23, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(P. Heith Reynolds; Wolfe, Williams &
Rutherford, on brief), for appellant.
(J. Jason Eige; Penn, Stuart & Eskridge, on
brief), for appellees.
Gene Leighton Smelcer (claimant) contends the Workers’
Compensation Commission erred in finding he failed to prove that
he was entitled to (1) a de facto award of benefits for the
period from May 4, 2000 through August 13, 2000; and
(2) disability benefits after June 4, 2000. Upon reviewing the
record and the parties’ briefs, we 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).
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Unless we can say as a matter of law that claimant’s evidence
sustained his 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).
De Facto Award
[W]here the employer has stipulated to
the compensability of the claim, has made
payments to the employee for some
significant period of time without filing a
memorandum of agreement, and fails to
contest the compensability of the injury, it
is "reasonable to infer that the parties
ha[ve] reached an agreement as to the
payment of compensation," and a de facto
award will be recognized.
Ryan’s Family Steak Houses v. Gowan, 32 Va. App. 459, 463, 528
S.E.2d 720, 722 (2000).
In denying claimant a de facto award, the commission found
We do not find that the payment of wage
benefits for approximately 14 1/2 weeks is
sufficient to warrant the entry of a de
facto award in this case. There is no
evidence to suggest that the employer ever
advised the claimant that it had accepted
his claim. Moreover, the employer contested
the compensability of his injury at the
Here, employer did not stipulate to the compensability of
the claim; did not make payments to claimant for a significant
period of time; and contested the compensability of claimant’s
claim at the hearing. Based upon this record, the commission,
as fact finder, could reasonably infer that the parties had not
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reached an agreement as to compensation. Accordingly, we cannot
find as a matter of law that claimant proved he was entitled to
a de facto award.
Disability Benefits after June 4, 2000
In denying claimant’s claim for disability benefits after
June 4, 2000, the commission found as follows:
It is the claimant’s burden to prove that
his disability prevents him from performing
his pre-injury employment. The medical
record clearly reflects that on June 7,
2000, Dr. [Thomas L.] Huddleston released
the claimant to sedentary work. These
restrictions stayed in place until July 31,
2000, at which time he was restricted only
from squatting. However, there is no
opinion from any physician that the claimant
was unable to perform the requirements of
his pre-injury teaching job. Therefore, he
is not entitled to temporary total
disability benefits from June 5 through
August 13, 2000.
The claimant also seeks temporary
partial disability benefits from January 1
through August 1, 2001; temporary total
disability benefits from September 1 through
December 1, 2001; temporary partial
disability benefits from December 2 through
December 30, 2001; and temporary total
disability benefits from January 1, 2002,
and continuing, based on his restrictions of
no working more than four days a week; no
squatting, kneeling, or climbing; and no
standing or walking over two hours a day.
However, there is no evidence to show how
many days he worked in his pre-injury
employment. Without evidence of the scope
of the claimant’s pre-injury job duties, we
are precluded from finding disability for
any period after June 4, 2000.
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In light of the absence of any medical evidence indicating
that claimant’s restrictions prevented him from returning to
perform all aspects of his pre-injury work as a music teacher,
coupled with evidence that he worked for a period of time as a
music teacher for another school system while under those
restrictions, we cannot find as a matter of law that claimant’s
evidence sustained his burden of proving he was entitled to an
award of disability benefits after June 4, 2000 and continuing.
For these reasons, we affirm the commission’s decision.
Code ? 17.1-413, this opinion is not
designated for publication.
We did not
consider claimant’s deposition testimony
because it was not properly entered into the record before the
commission. The commission declined to consider the deposition
in rendering its decision because neither party requested that
it be made a part of the record.