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SMELCER v. DICKENSON COUNTY SCHOOL BOARD, et al.




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SMELCER

v.

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

v.

DICKENSON COUNTY SCHOOL BOARD AND

TENNESSEE INSURANCE GUARANTY ASSOCIATION

ON BEHALF OF RELIANCE INSURANCE COMPANY

 

MEMORANDUM OPINION[1]PER
CURIAM

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).

- 2 -

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

as follows:

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

Hearing.

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

- 3 -

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.[2]

For these reasons, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.

 

[2]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.

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