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HARMAN MINING CORP. v. THACKER


HARMAN MINING CORPORATION

v.

THACKER

(unpublished)


JUNE 8, 1999

Record No. 0267-99-4

HARMAN MINING CORPORATION AND SECURITY
INSURANCE COMPANY

OF HARTFORD

v.

JOHN THACKER

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

Present: Judges Benton, Coleman and Willis

MEMORANDUM OPINION* PER CURIAM

(Thornton L. Newlon; Blandford & Newlon, on
briefs), for appellants.

(Daniel Sachs, on brief), for appellee.


Harman Mining Corporation and its insurer
(hereinafter referred to as "employer") contend that
the Workers’ Compensation Commission (1) incorrectly applied the
test set forth by this Court in Clinchfield Coal Co. v. Parrot,
22 Va. App. 443, 470 S.E.2d 597 (1996), with respect to whether
an injured employee is able to return to pre-injury employment;
and (2) erred in finding that employer failed to prove that John
Thacker was able to return to his pre-injury work as of February
9, 1998. 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. See Rule
5A:27.

On appeal, we view the evidence in the light
most favorable to the prevailing party below. See R.G.
Moore Bldg. Corp. v. Mullins
, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). "General principles of workman’s
compensation law provide that ‘[i]n an application for review of
any award on the ground of change in condition, the burden is on
the party alleging such change to prove his allegations by a
preponderance of the evidence.’" Great Atl. & Pac.
Tea Co. v. Bateman
, 4 Va. App. 459, 464, 359 S.E.2d 98, 101
(1987) (quoting Pilot Freight Carriers, Inc. v. Reeves, 1
Va. App. 435, 438-39, 339 S.E.2d 570, 572 (1986)). Unless we can
say as a matter of law that employer’s evidence sustained its
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).

In denying employer’s change-in-condition
application and in finding that employer failed to prove that
Thacker was able to fully perform his pre-injury work, the
commission found as follows:

[T]he "clean" weight
of the miner cable is 4.8 pounds per foot,
resulting in an approximate total weight of
between 48 and 72 pounds. Although a miner helper
was assigned to assist [Thacker] in his
pre-injury work, including lifting the miner
cable, it is uncontroverted that sometimes a
miner helper was absent or not available. Whether
such occurrence was frequent or infrequent is of
no consequence, because [Thacker] was restricted
from even occasionally lifting in excess of 70
pounds.

. . . [C]laimant’s pre-injury
job required occasional lifting of the miner
cable without assistance. In the July 17, 1998,
Opinion, the deputy commissioner stated that
lifting 15 feet of miner cable was within
[Thacker's] job description, based on a per-foot
weight of 4.5 pounds. As noted above, however,
the evidence establishes that the cable weighed
4.8 pounds per foot. Moreover, this weight does
not take into account any debris on the cable,
the weight of the water line, and the effect of
the equipment carried by [Thacker] while
performing his duties. As for Dr. [Clinton] Sutherland’s release of [Thacker], it is based on
the job description provided by the employer,
which does not account for occasional lifting of
the miner cable without assistance.

(Footnote omitted.)

The commission’s findings that Dr. Sutherland’s
release was based upon an incomplete and/or inaccurate job
description and that the manner in which claimant actually
performed his job fell outside of Dr. Sutherland’s restrictions
are supported by Thacker’s testimony. As fact finder, the
commission was entitled to accept Thacker’s testimony regarding
his job duties and to reject any contrary testimony.

Thus, we cannot say as a matter of law that
employer’s evidence sustained its burden of proving by a
preponderance of the evidence that Thacker was capable of
performing all of the duties of his pre-injury employment as of
February 9, 1998.

Contrary to employer’s argument, the
commission’s holding in this case was not inconsistent with our
holding in Parrott. In Parrott, we reaffirmed the
principle that "’[i]n determining whether an injured
employee can return to his or her pre-injury employment duties
the Commission does not look at how the duties could ideally be
performed, but rather, how the duties were actually performed.’"
22 Va. App. at 447, 470 S.E.2d at 598-99 (citation omitted).
Here, Thacker’s testimony, which the commission was entitled to
accept, established "how the duties were actually
performed," or in other words, the "normal and
customary manner in which the pre-injury work was
performed." Id. at 447, 470 S.E.2d at 599.

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

Affirmed.

*Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.

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