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REED v FISHER


REED v FISHER (unpublished)


APRIL 1, 1997

Record No. 2663-96-2

COURT OF APPEALS OF VIRGINIA

 

HENRY A. REED T/A REED CONSTRUCTION

v.

ROGER DALE FISHER, SR.,

TIM LAMBERT T/A LAMBERT CONSTRUCTION,

AUTO OWNERS INSURANCE COMPANY AND

CRITTENDEN ADJUSTMENT COMPANY

 

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(William T. Fitzhugh; Beddow, Marley & Associates, on
briefs), for appellant.

(B. Mayes Marks, Jr., on brief), for appellee Roger Dale
Fisher, Sr.

(Mark M. Caldwell, III; Sands, Anderson, Marks & Miller,
on brief), for appellees Tim Lambert t/a Lambert Construction,
Auto Owners Insurance Company and Crittenden Adjustment Company.

Present: Judges Bray, Annunziata and Overton

 

MEMORANDUM OPINION[*]

PER CURIAM


Henry A. Reed t/a Reed Construction (employer) contends that
the Workers’ Compensation Commission (commission) erred in
finding Roger D. Fisher, Sr. (claimant) proved he was totally
disabled from August 8, 1995 through September 1, 1995 and from
September 14, 1995 and continuing. [1] 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. 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). Factual
findings made by the commission will be upheld on appeal if
supported by credible evidence. James v. Capitol Steel Constr.
Co.
, 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

Dr. Mohamed Tawfick’s medical records and his February 28,
1996 responses to claimant’s counsel’s written questions provide
ample credible evidence to support the commission’s decision. Dr.
Tawfick treated claimant from August 8, 1995, the date of his
work-related accident, through December 7, 1995. In responding to
counsel’s questions on February 28, 1996, Dr. Tawfick stated that
he had taken claimant out of work during the course of his
treatment. In addition, Dr. Tawfick stated that as of February
28, 1996, he had not released claimant to return to work.
Employer presented no medical evidence to dispute Dr. Tawfick’s
opinions. In addition, based upon claimant’s testimony, the
commission could infer that claimant did not return to Dr.
Tawfick after December 7, 1995 because employer had denied the
claim, and claimant had no resources with which to seek medical
treatment.

Because Dr. Tawfick’s undisputed medical records and opinions
provide credible evidence to support the commission’s finding
that claimant was totally disabled from August 8, 1995 through
September 1, 1995 and from September 14, 1995 and continuing,
this finding is binding and conclusive upon us on appeal.

Claimant’s request for an award of attorney’s fees and costs
pursuant to Code ? 65.2-713 is denied. For the reasons
stated, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[*] Pursuant to Code ? 17-116.010
this opinion is not designated for publication.

[1] Claimant conceded before the
commission that he attempted to work during the first two weeks
in September 1995, and he waived his claim for benefits for these
two weeks.

 

 

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